🔑 Legal Writing: Anticipating Counterarguments in a Brief

The Question

Should you anticipate and address your opponent's arguments before they raise them?

The Short Answer

Yes, especially when you are the party making the motion.

What the Lawline Presentation Teaches

In Drafting Motions & Briefs in Federal Court (Lawline CLE, May 25, 2021), Brian Morrison explains that when you are "on offense" (i.e., filing a motion), you should anticipate how the opposing party will respond and address those arguments in your brief.

He notes that if you fail to do so, you leave your argument open to attack.

At the same time, this does not mean leading with the opponent’s arguments or allowing them to control the structure of your brief.

The Key Distinction: Offensive vs. Defensive Posture

Whether to anticipate counterarguments depends on your posture:

• When you are on offense (moving party): Anticipate likely responses and address them within your argument.
• When you are on defense (opposing a motion): The arguments are already presented. Your task is to respond directly.

How to Do It Properly

Anticipation should be:

• Integrated, not dominant — your argument comes first
• Targeted — address likely or obvious counterarguments
• Efficient — do not overdevelop weak or speculative points

Example:

Defendant may argue that [X]. That argument fails because [Y].

Or more directly:

Any argument that [X] fails because [Y].

Where It Goes in the Brief

Anticipated counterarguments typically belong:

• Within the relevant section of your argument
• After you have stated your position clearly

They should not:

• Appear in the introduction
• Overwhelm your primary argument

What This Achieves

Addressing counterarguments in advance:

• Strengthens your credibility
• Narrows the issues for the court
• Prevents avoidable weaknesses

Failing to do so gives your opponent an opening to define the issue on their terms.

Bottom Line

If you are making the motion, anticipate the response.

But keep control of the argument. Do not let the counterargument become the focus.

Applied Examples