Preemptive Distinction #33
Definition
Credibility technique · Tier Expert
Distinguishing the opponent's likely best case in the moving papers, before they cite it. When the opponent's brief arrives, they're either (a) citing a case already distinguished — looking unresponsive — or (b) avoiding the case — conceding the distinction.
Why it's expert
This requires knowing the opposing authority as well as the opponent does. It requires anticipating which case they'll rely on, then addressing it on the merits first. The distinction in the moving papers sets the frame. The opponent's brief then responds to that framing rather than introducing the case fresh. This is adverse-authority compliance (NY RPC 3.3(a)(2)) doing affirmative work.
How it differs
- Distinguished from the rubric's adverse authority requirement
The rubric requires disclosing adverse authority as an ethical obligation. Preemptive Distinction satisfies that obligation in a way that also advances the argument — not just addressing the adverse case, but addressing it first and on the merits.