Making Your Case: The Art of Persuading Judges

This is an excellent book which deals in a comprehensive way with many issues arising in legal practice. It contains a concise set of rules on how to present a case effectively. Although the book is aimed at American lawyers and is based on the American legal system the advice contained therein would apply equally to other legal systems.

This excellent book is concise and entertaining. Nothing stuffy or boring in this read. The "a-ha" moments jump out on every page. Very informative and certainly useful for every new attorney.

Associate Justice Antonin Scalia, of the U.S. Supreme Court, has broken his media silence to talk on camera in order to hawk a rule book (115 rules to be precise) that he's written with Bryan Garner, his sycophantic co-author whose claim to fame is as the author of "Modern American Usage" and the "Elements of Legal Style".

The title of the book is "Making your case - the Art of Persuading Judges."

Perhaps it's too stern a standard to expect any public figure, much less a Justice of the U.S. Supreme Court, to tell us how it all really works - and trust me you won't find out reading this book. You'd get much more out of listening to Justice Scalia's interviews promoting his book.
There are, however, some interesting anomalies for the alert observer.
At the very outset, Justice Scalia advises us, of a judge's "human proclivity to be more receptive to argument from a person who is both trusted and liked" (p. xxii).

You may recall the accusation that Justice Scalia was more "receptive" to Vice President Cheney's argument before the Supreme Court, when our Vice President refused to disclose information about his energy task force.

Justice Scalia appeared to "trust" and to "like" Cheney. Justice Scalia even went duck hunting with the Vice President while the Sierra Club's appeal demanding disclosure was pending before the Supreme Court. Justice Scalia then wrote a 21-page "not-to-worry" broadside saying that many Supreme Court Justices get their jobs "precisely because they were friends of the incumbent president or senior officials." But does that resolve the Justice's "human proclivity"?

Having said relationships matter, Judge Scalia then says in this same rule book, in seeming contradiction, that "emotions" have no business in oral argument. This is jarring when it comes from one of the more passionate Justices in our lifetime. In Rule 17 (p. 31), Justice Scalia nevertheless warns against making "a blatant appeal to sympathy or other emotions" because such an "overt appeal" is "resented" by judges. Perhaps Justice Scalia's warning is against "blatant" appeals, rather than against an emotional appeal that is artfully executed. After all, experience and common sense teach us that it's a bad advocate who doesn't know how to use emotions as well as reason.

Judge Scalia purports to rely on Aristotle, among other classics, as source material, but Aristotle's Rhetoric (see Book II) expressly teaches us that "emotions" do matter. Aristotle wrote that "rhetoric exists to affect the giving of decisions" and "[t] he emotions are all those feelings that so change men as to affect their judgments..."

Aristotle directs every advocate to "to bring his hearers into a frame of mind that will dispose them to anger ..." or any other "emotion" that favors the preferred outcome.

Justice Scalia also teaches that an advocate must "master the relative weight of precedents" (Rule 26)(p. 52). But how do you master what is disregarded or unprecedented by a court? This is a legitimate controversial area of advocacy that is entirely overlooked in this rule book.

When the Supreme Court intervened, in its 5-4 decision, in 2000, making Governor George Bush the President over VP Al Gore, by stopping the recount in the Florida primary, the decision was unprecedented.
The dissenters called it an intrusion into what was and should have been resolved by state law; Associate Justice Breyer quoted Brandeis who wrote: "The most important thing we do is not doing."

When correspondent Lesley Stahl recently asked Justice Scalia on CBS's Sixty Minutes if the decision in Bush v. Gore, ending the Florida recount favoring Bush, wasn't more about politics than judicial philosophy, Justice Scalia passed up the opportunity to teach us, just as he did in his rule book, and said instead "get over it. It's so old by now."

(If court opinions invited indifference or irrelevance by their age, then why is it that Justice Scalia can't "get over" a much older Supreme Court decision, Roe v. Wade, from 1973, recognizing a woman's right of privacy?)

More critically, how does any advocate learn to argue to a court, any court, with a political agenda that disregards precedent?
Justice Scalia also encourages an undemocratic tone and his rules, if followed, would tamp down zealous advocacy.

Justice Scalia instructs deference to the Court, and that is fine as far as it goes, but he also tells advocates that they should appear as a "junior" colleague, and as one "explaining the case to a highly intelligent senior partner" (rule 18, p. 33). I beg to differ. No advocate should be considered an inferior before any court in a democracy. No advocate should need to consider himself (or herself) in any other way than respectful and competent. I believe most courts and justices agree and prefer a competent advocate to inform their discretion, and not some lackey who is too humbled before the court to be zealous for his client.

Consider Abe Fortas' appearance before the court in 1962, when he argued that Clarence Gideon had a right to have counsel appointed to represent him. The argument was collegial and collaborative. Indeed, President Johnson later nominated Mr. Fortas to become an Associate Justice, and thus a true colleague to the other Justices.

You also have to take issue when Justice Scalia discourages "indignation" in an advocate even when a client has been mistreated, and counsels against accusing opposing counsel of "chicanery" even if true, and discourages any argument that highlights the willful distortion by a lower court judge (rule 19, pp. 34-35).

Justice Scalia doesn't blunt his own zealous advocacy as a Justice. He has written opinions that referred to the other Justices' opinions variously as "sheer applesauce", "absurd", "implausible speculation", and "self-righteous." Should an advocate before the Court be more constrained than a Justice?

Perhaps it is harsh to treat this as a rule book for the experienced counsel, or to judge it by that standard, and I kept coming back to the judgment that this was a book that required more ignorance or innocence to sustain a reader's interest.

In truth, Justice Scalia's opinions are richer and more robust and instructive in advocacy by their example than anything you'll find in this rule book.

So don't buy the book. If you really want to know how to be an advocate, read your Aristotle.

I heard Scalia, a little man who has a bullying personality, interviewed about this book on radio. He lamented the use of contractions which, he felt, diminished the "eloquence" of judicial opinions. If he's not smart enough to know that the impoverishment of opinion expression, not just judicial, is due to the vapid reasoning of our current leaders and their crippled expression, then he's certainly not smart enough to offer suggestions on how to be persuasive. It's clear to anyone familiar with Scalia's dogmatic sensibility that as regards many important matters facing this country, his mind has already been made up. As a loyal member of Opus Dei, he is committed to denying reproductive rights to women and doing everything he can to diminish any vestiges of tolerance and humanity which the legal system should nourish. In public appearances he continues to be glib and insulting, inviting not arguments that might persuade him but similarly clever one-liners that are the standard of his sophistry.

What many trial lawyers forget is that in order to win at trial, you have to not only persuade a jury, but the trial judge and appellate court. This book should be on the book shelf of every trial lawyer. Written by the undisputed expert in the field of legal writing (Bryan Garner)and one of the most famous Supreme Court Justices, the reader is treated to wonderful insights about how to persuade judges.

Are you a lawyer looking for a way to write a more concise, logical and persuasive brief? Are you looking for a better way to argue your points at a hearing? Wouldn't you like to know what judges are looking for when they read your brief and listen to you in court? Of course. This book is authorative, fascinating, insightful and easy to read.