Writing That Works
Giving the Other Side Its Due: How to Weave Counterarguments into a Brief Effectively
Most lawyers agree—at least in theory—that a strong brief anticipates the other side’s best points. In practice, counterarguments are often handled in one of two unhelpful ways: ignored entirely, or treated like an afterthought (“Opposing counsel’s arguments fail for many reasons…”) with little analysis. Neither approach serves the client.
Handled well, counterarguments do more than “check the box.” They build credibility, sharpen your own reasoning, and help the court trust that your proposed rule or application is sturdy enough to withstand pressure. The key is learning how to integrate counterarguments strategically rather than defensively.
Below are five practical considerations for weaving counterarguments into a brief effectively—without losing momentum or giving away the store.
1. Deciding When a Counterargument Is Warranted
Not every opposing point deserves space in your brief. A counterargument is warranted when it meets at least one of these criteria:
It’s likely to occur to the judge. If a counterargument is obvious from the facts, the governing standard, or common sense, assume the court will think of it even if the other side doesn’t emphasize it. If you don’t address it, you leave a gap the court may fill on its own—often not in your favor.
It’s central to the opponent’s theory. If the counterargument is part of the opposing party’s main pathway to victory, you should treat it as a real obstacle, not a nuisance. Skipping it can make your brief feel incomplete or overly optimistic.
It’s supported by authority. If there is case law, statutory text, or record evidence that appears to cut against you, acknowledge it and explain why it doesn’t control. Courts generally prefer a lawyer who confronts difficult authority directly over one who hopes it goes unnoticed.
It threatens your framing. Some counterarguments don’t change the legal standard but undercut your narrative (e.g., fairness, reliance, common practice, or practical consequences). If your argument depends on a particular framing, address competing framings explicitly.
By contrast, you can often omit counterarguments that are plainly frivolous, purely rhetorical, or factually impossible on the record. The risk of responding is that you elevate a weak point into a perceived issue.
2. How Much “Air Time” to Give a Counterargument
Counterarguments should be proportional to their strength and significance. A useful rule of thumb is:
- Weak and peripheral: a sentence or two
- Moderate and plausible: a short paragraph
- Strong and case-dispositive: a full section (sometimes more)
The danger on one end is over-answering—devoting so much space to the other side’s position that your own argument begins to feel like the exception. The danger on the other end is under-answering—offering a conclusory dismissal that signals you may not have a real response.
A good proportionality check is to ask: If the judge found this counterargument persuasive, would I lose? If yes, it deserves more than a drive-by response. If no, keep it tight and move on.
Also consider the court’s bandwidth. Many judges and clerks are reading quickly and looking for the decision points. Counterarguments should clarify the path to a ruling, not create a maze.
3. Structuring a Counterargument Clearly
The most effective counterarguments are not “debates on paper.” They are controlled, readable, and purposeful. A clear structure looks like this:
- State the counterargument fairly (one clean sentence). “Defendant argues that the claim is untimely because the limitations period began running when the contract was signed.”
- Identify what the counterargument assumes.
“That argument depends on treating the signing date—not the breach date—as the point of accrual.” - Refute it using law, record, or logic (two to five sentences).
“But under [controlling rule], accrual begins when the plaintiff can first sue for breach. Here, the breach occurred on [date], and the complaint was filed within [time].” - Close with a short takeaway that returns to your theme.
“Accordingly, the claim is timely, and the motion should be denied.”
That structure keeps the counterargument contained. You acknowledge it, define it, answer it, and exit—without letting it take over your argument.
One additional tip: avoid straw-manning. If you misstate the other side’s point, you may win the paragraph but lose credibility. Courts can tell when an argument is being minimized rather than met.
4. The Best Placement for a Counterargument
Placement is strategy. Where you put a counterargument affects how the reader perceives it.
Option 1: Integrate it into the main argument (often best).
This approach works well when the counterargument is the natural next question the reader will have. For example, after stating a legal rule, you might immediately address the likely limitation or exception. Integration creates a smooth, confident flow: rule → application → anticipated objection → answer → conclusion.
Option 2: Address it in a discrete section.
This works when there are multiple counterarguments, or when the issue is significant enough to deserve a clear heading. A labeled section can help the judge locate your response quickly and can prevent your main argument from becoming cluttered.
Option 3: Put it in a footnote (use sparingly).
Footnotes are appropriate for truly minor points or cleanup issues. But if the counterargument is important, burying it in a footnote may signal that you don’t want the court to look too closely.
In general, the stronger the counterargument, the more visible your response should be. A major vulnerability should not be hidden. It should be resolved.
5. Using Neutral, Respectful Language
Counterarguments are not the place for heat. Courts value professionalism, and inflammatory language tends to backfire—especially when you’re describing the opponent’s position.
Use neutral verbs like “contends,” “asserts,” “argues,” or “maintains.” Avoid loaded phrases like “misrepresents,” “distorts,” “manufactures,” or “gamesmanship” unless the record truly supports them and the point matters.
Similarly, avoid dismissive language like “clearly,” “obviously,” or “ridiculous.” If the counterargument is truly weak, your reasoning will show it. If it isn’t weak, those words will only make you sound defensive.
A respectful tone also helps you present the counterargument fairly—one of the quickest ways to gain credibility with a court. The goal is not to win a personality contest. It is to persuade a decision-maker who wants the right answer with the least unnecessary friction.
Conclusion: Treat Counterarguments as a Persuasion Tool, Not a Chore
A well-handled counterargument does not interrupt your brief. It strengthens it. It signals confidence, earns trust, and helps the court see that your position remains correct even after considering the best objections.
So the next time you’re tempted to skip the other side’s strongest point—or to swat at it with a conclusory sentence—pause and do the harder thing: name it fairly, answer it directly, and guide the reader back to your conclusion. That’s not just good advocacy. It’s good lawyering.
Laura Graham serves as Professor of Legal Writing and Director of Legal Analysis, Writing, and Research at Wake Forest University School of Law, where she has been teaching since 1999. She was the first recipient of the law school’s Graham Award for Excellence in Teaching Legal Research and Writing, which is named in her honor, and currently serves as immediate past president of the Association of Legal Writing Directors. Graham is a graduate of Wake Forest University and Wake Forest University School of Law.