The following is a brief extract from a section about ‘Legal Argument & Reasoning’ in my forthcoming book, the ‘2nd Ed Contentious Probate Handbook’, which I am writing for the Law Society: –

‘If a judge thinks of an objection to your argument before either your opponent raises it or you address it, then he may believe that you have overlooked an obvious flaw in your argument. This creates a bad impression. Besides, counsel is under a duty to draw any adverse authority to the attention of the court. A skilled advocate will use anticipatory refutation to pull the rug out from underneath their opponent’s case by distinguishing the applicability of the counter-argument on the law and facts.

By failing to seize the initiative, i.e. by not addressing a potential objection before it is raised, you also appear weak. You will have given the impression that you are reluctant, rather than eager, to confront a potential objection head-on, i.e. ‘to take the bull by the horns’.

By systematically demolishing a counterargument, you turn the tables and put your opponent on the defensive. You are the poised to exploit the opportunity by reframing the opposing argument in your own terms and thereby to establish the optimal context for later discussion. By addressing counterarguments early, you will also appear to be more even handed and trustworthy.

However, anticipatory refutation is not without risk! By refuting, you do not want to inadvertently alert your opponent to the existence of a counterargument that has not thought of.

Aristotle advised responding advocates to rebut forcefully in their opening words. If an opponent has said something that seems compelling, you must quickly demolish that position to make space for your own argument. Having made that space, you must then fill it. An advocate does this by proceeding quickly to a discussion of their major premise, and factual matrix.’

As stated in Cicero, Marcus Tullius How To Win An Argument – An Ancient Guide to the Art of Persuasion, Edited, and Translated by James M. May (2016), Princeton University Press And Oxford, on p.61):

‘Every argument is refuted in one of these ways: either one or more of its assumptions are not granted; or if the assumptions are granted, it is denied that a conclusion follows from them; or the form of argument is shown to be fallacious; or a strong argument is met by one equally stronger. One of the assumptions of the opponent is not granted when either what they say is credible is denied to be such, or what they think is a parallel case is shown to be dissimilar, or a judicial decision is interpreted in a different sense, or decisions in general are denied validity, or what the adversaries regard as sound evidence is denied to be such, or one or both horns of a dilemma are shown to be unsound, or an enumeration is demonstrated to be incomplete, or a simple conclusion is shown to contain a fallacy. For everything which is used in argumentation, either as a probable or rigorous proof, must come under one of these heads.’