I always tend to procrastinate a bit when I need to write a brief.  I enjoy brief writing, it’s one of the more creative parts of my job, and it can be incredibly satisfying when it starts to flow.  I often find, however, I need deadline pressure to really get moving; although I like to think that I am actually thinking over the argument in my subconscious, which makes the argument flow faster when I actually sit down to write it.

Anyway, today I was working on a section of a brief that I had procrastinated about more than usual because I was worried that my adversary had a strong point that would be difficult to overcome based on my initial skimming of their brief.  When I read my adversary’s argument again, however, not only did it become clear that the argument was based on a strawman, it further became clear that the strawman was made of air.  In other words, there wasn’t even any straw there.  Basically, the argument was:

“In order to have X, you must have Y.  While the statute doesn’t explicitly require Y, it requires it by implication, which is supported by the requirement of Y in this regulation, that while not directly applicable is suggestive.  Respondent can’t show Y, so they can’t prove X.”

The problem with this argument is that not only is the first sentence setting up the strawman, which was easy enough to address, the bolster to the argument’s straw, i.e., the regulation’s requirement of Y, is false.  The regulation does not in fact require Y, if you read it carefully.   If you want to build a convincing strawman to lead your opponent off track, you should have some straw.

This is all a long-winded way of saying that I had more fun than usual drafting my reply brief.  In fact, I had so much fun, I’m worried I’ve overlooked something.  I shall have to put it aside for a day and re-read it to make sure.

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