Moot Court Advocacy Series – Season IV: ‘Advanced Oral Advocacy’, Episode II: ‘The Art of Rebutting (and Surrebutting)’

Hello everyone!

Today we will discuss an essential part of every moot court pleading – rebuttals and surrebuttals.

In simple terms, a rebuttal is a direct answer to the other party’s oral argument. It usually occurs after both parties conclude their pleadings. The party which started the argument has the right for rebuttal. The responding party has the right for surrebuttal, which is an answer to the rebuttal.

Rebuttals and surrebuttals are important for several reasons. Firstly, they are your last opportunity to make a lasting, positive impression on the tribunal and convince it of the strength of your arguments. Secondly, they are your last opportunity to undermine the other party’s position, cast doubt on its credibility or logic. Effective rebutting and surrebutting is by no means easy: it requires careful selection of arguments and wording, clarity and wit. A brilliant rebuttal can win the hearts of judges and arbitrators. A terrible one – cost you a lost pleading.

How to make sure that you rebut and surrebut in a way that every tribunal will like?

  1. Reserve time at the beginning of the pleading

In order for a rebuttal or a surrebuttal to actually happen, you have to reserve time for it in the first place. At the very beginning of the argument (usually when the panel asks the parties to introduce themselves and give their time allocation) you should mention that the parties reserved time for rebuttals and surrebuttals. You and the other team do not necessarily have to reserve the same amount of time.

Bear in mind that arbitrators at times forget about the fact that the parties reserved time for rebuttals and surrebuttals. If it happens, do not be afraid to remind them that you agreed on it in your time allocation.

Rebuttals and surrebuttals are an essential part of every pleading which is often required under the rules of competitions. However, even if they are not obligatory, I would not skip them: judges and arbitrators enjoy them and might be surprised if the parties agree to skip them.

  1. Make it short

An effective rebuttal (and surrebuttal) is always short. You should not reserve more than one minute for it, and ideally it should take you around thirty or forty seconds.

Reserving two or more minutes for a rebuttal does not make sense. It dilutes the message you want to convey or prompts you to address too many points. Unlike the core submission, rebuttals and surrebuttals must not be extended even if you need more time – you simply have to make it within the time you initially reserved.

Many people believe that they should reserve more time for their rebuttals, because otherwise they will not be able to address all arguments put forward by the other party. It is a mistake – you are not supposed to address ALL arguments. Your task is to pick one or two. Why? It leads me to my second point…

  1. Make it sweet

A effective rebuttal is direct, punchy, concise and memorable. In order to achieve it, you need to follow a few easy rules.

Firstly, you rebuttal should target a point from your opponent’s pleading which is both important and exposed. It makes little sense to pick a secondary issue or a minor mistake – they do not have the necessary potential to turn the case in your favour. Furthermore, you should attack a weakness, an aspect of your opponent’s argument that caused the tribunal to raise an eyebrow over his or her submission. It might be a misinterpretation of facts, an incorrect application of a particular provision, selective quotation from relevant case law… Usually you have at least a couple weak spots to exploit. Which one to choose? You have to judge it on case-by-case basis. The more intimately you know the record and the case law, the more likely you are to connect the dots an deliver a true coup de grâce to your opponent (or save your case on rebuttal).

Secondly, you should address one, maybe two point. You might have four excellent counterarguments, but when you rebut, less is more. You have to leave the judges or arbitrators with a lasting impression that your opponent’s case is ungrounded, that key points in their argument lack merit. It is difficult to do if you try to squeeze too much into a one-minute-long speech. Your arguments are less persuasive and your opponent’s weaknesses less glaring when you elaborate o them for too long. Lastly, the longer you rebut, the more time you give to the other party’s counsel to prepare a defense for the surrebuttal.

Thirdly, your rebuttal  should not provoke questions from the panel. Although it is rather uncommon for arbitrators to ask questions during rebuttals, it happens if counsels say something unclear, controversial or use a sweeping statement that can confuse the panel. There is too little time to shed more light on your position at this point, so be careful.

  1. In your surrebuttal – be responsive

Surrebuttals’ aim is to counter the effect a rebuttal may have. Many moot court participants misunderstand its purpose and try to attack other points from the opposing counsel’s pleading. Unfortunately, when you surrebut you do not have this comfort: a correct and effective surrebuttal counters only the points raised during a rebuttal. This is why it makes even less sense to reserve more than one minute for it – what you actually need is time for a few short sentences explaining why the rebuttal that the arbitrators have just heard is entirely ineffective. All in all, surrebuttal is probably the most difficult part of the responding party’s pleading. You never know what the other party brings up and have literarily seconds to react. Nevertheless, as it is the very last sentence that the bench hears during a pleading, its impact on the result of a hearing can be significant.

  1. Waiver only if you must

In principle, you should never waive your right for rebuttal. Moot court problems are by definition balanced. Whether you represent claimant or respondent, there are always strong and weak points in their respective positions (or good and bad selections of arguments). Even the best opponent will give leave you room for strong counterarguments.

As far as surrebuttal is concerned, the situation is slightly more complicated. Again, in principle you should not waive it. There are two exceptions. Firstly, no surrebuttal can occur if the other party waives their rebuttal. Secondly, if you are confronted with an extremely unclear, pointless or weak rebuttal, in some cases it is fine to let go. Respect the tribunal’s precious time and do not waste it in case it is not worth it.

I hope that now you will be able to turn your pleading into a smooth and .

All the best,

Marek

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