Saturday, October 24, 2009

Responding to Buckshot Briefs

Issue proliferation goes virulent to become buckshot briefing when the number of issues compels inadequate development of each. The proliferator of issues thinks he increases his chances of prevailing because he naively disregards the dilution of stronger arguments. The proliferator knows that if he prevails, it will probably be based on the arguments he knows are stronger, but he takes the attitude endemic among lawyers that risk is eliminable. The buckshot briefer, in contrast, knows he has little chance of prevailing and hopes to strike it rich by luck. The buckshot briefer typically can't identify his strongest arguments, since none are developed adequately.

A lawyer, as a rule, will file a buckshot brief only when two conditions are satisfied: he is prosecuting or defending a weak case, and he is unable to analyze the law and facts of the case competently. If the lawyer is defending a strong case, the benefits of developing the strongest arguments are manifest, and the buckshot case will rarely tempt. But even if the case is inherently weak, still the buckshot case is a bad strategy: the lawyer can do better by relying on the strongest arguments, however weak. Judges assuredly know these truisms, and the buckshot briefer will be subject to judicial disdain, to complicate his disputational debility.

The number of buckshot briefs submitted suggests the practice must carry some advantages. One advantage of the buckshot brief is it allows the briefer to offload his research responsibilities to opponent. Instead of researching the arguments to discard those that aren't supportable, the buckshot briefer includes any impressionistic argument and lets his opponent sort out the meritorious. This is the unavoidable burden of responding to a buckshot brief.

Filing a buckshot brief also burdens opponent with conceiving how to organize a coherent response to the disjointed submission. If he succeeds in enticing his opponent to oppose his buckshot brief with a buckshot response, the buckshot briefer will have leveled the field. A lawyer cursed with responding to a buckshot brief must impose a simplifying structure on the buckshot briefer's meanderings. He should structure the response to bring out the buckshot character of the brief without expressly having to dwell on it; the response should expose the implausible validity of the buckshot brief's simultaneous contentions. In responding to a recent buckshot brief, I introduced my structuring of the briefer's arguments this way:

G presents a buckshot case rhetorically emphasizing his right to equal protection of the law. He covers all bases: the court should have granted the continuance; failing granting the continuance, the judge should have submitted to G's peremptory challenge; and failing to prevail on his jurisdictional challenge to the court, G should have prevailed on the merits.

When possible, the best organization of arguments targets common assumptions of the buckshot arguments, but often arguments aren't merely presented in buckshot fashion; they really are disjointed. Deal with disjointed arguments by organizing the response around the soundest arguments. The responder shouldn't fall to the temptation of avoiding the strongest arguments because the buckshot briefer doesn't emphasize them.

Thursday, October 15, 2009

The colon: When the explanation is more important than what’s explained

Each punctuation mark serves a core function, and usage should follow the core function whenever the rules governing that function are applicable. Disputed Issues has considered the core functions of several punctuation marks: The comma sets off nonrestrictive elements; the semicolon neutrally connects independent clauses; and the dash emphasizes matter tangential in its immediate context. Following the core functions means eschewing rules unrelated to the core function unless the core function is unrelated to the construction. To take the comma, usage guides sometimes state the rule that a comma doesn't set off an adverbial clause at the end of a sentence, but the restrictive - nonrestrictive distinction the writer should apply eviscerates the rule.
The core function is the main function for ordinary discursive text. The colon has a variety of uses, such as exemplification by lists, but the central discursive use of the colon is to substitute for a word like because to create a clause more central than the independent clause to which it would be subordinated. From the opposite end of the grammatical telescope, the colon demotes the independent clause to a parenthetical role.
Here's an example:
Density is audience relative: the optimal density for experts is higher than for novices; but density's audience relativity isn't as great as you might think.
Grammatically, an adverbial clause could substitute for the clause following the colon:
Density is audience relative because the optimal density for experts is higher than for novices; but density's audience relativity isn't as great as you might think.
The colon serves better than the adverb, since the matter in the because clause is more important than what precedes, which only creates a transition through a more general proposition; the more important propositions shouldn't ordinarily be subordinated to the less important. The clause following the colon becomes independent when the colon is substituted, but this happenstance doesn't affect the colon's usage; a subordinate clause can follow the colon, and the independent clause's significance would remain parenthetical.