Making Your Case: The Art of Persuading Judges

Why would non-lawyers want to read a book on persuading judges? For several reasons actually. First, many of us are involved in work that requires persuading others to adopt our views. While legal argument is substantially more formal and rule-driven than what most of us do, learning how to construct a logical argument as if it were to be delivered to the court, that Is governed by deadlines, restrictions on length, the need to adhere to established fact (or to establish those facts) and to be neither groveling nor inflammatory can be applied to selling your widgets. Perhaps more important is the fact that most people don't understand the impact of the court's decisions on our daily lives, our pocketbooks and our freedoms. Nine people sit on the Supreme Court. They cannot be removed except for the most grievous crimes and then only if Congress were to agree. More than one Justice has demonstrated that you can be senile and sit on the nation's highest court. Going down the food chain, the same applies to the federal appellate and trial courts. It is unlikely that one person in a hundred can even name a local federal district court judge and probably not one in a thousand could name the nine Supreme Court justices. Yet these men and women have tremendous impact on our lives, as do the thousands of state court justices. I am not a lawyer, but I consult to them and am not a stranger to the courtroom, writing drafts for legal briefs, doing legal research and the like. I have seen a lot of judges in action and have learned, in general, to fear them. They can - and do - cause tremendous harm through ill-considered decisions, making decisions with insufficient facts, assuming they know more than they do and myriad other reasons. They are gods in their courtrooms and if your lawyer fails to persuade them of the justness of your cause, you lose. Just how do these people reach their decisions? While justice is supposed to be blind (fat chance!), the justices are human and thus persuadable. Bryan Garner is a noted writer on legal writing. He is actually quite witty as he explains the use of the English language to lawyers who have had their understanding of words driven out of them in law school. Antonin Scalia is a hero to many for the courageousness of his decisions and dissents, his belief that the Constitution is to be strictly interpreted and his generally brilliant writing style. In 115, frequently witty, short chapters the two authors (who occasionally openly disagree) lay down their thoughts on how judges can be persuaded. It is not all about legal writing; e.g, advice to not chew your fingernails and dressing appropriately for court. They advise on giving your oral argument, which a lot of sales and marketing people would do well to read, especially the guidance to "never speak over a judge". In a sales situation, I am surprised at how often the sales person displays his or her contempt for me by not only not listening to me, but presuming they understand the point I was going to make before they spoke over me. I don't know about you, but a lot of salespeople have lost business with me for doing that. Some of the points the authors make are points of contention themselves: i.e., "swear off substantive footnotes - or not". None of the material in this book is truly new. Law students get elements of it in their first year as do some college students. A lot can be found in books on to be a better salesperson: i.e., don't chew your fingernails, etc. And a lot of it is plain commonsense. But that doesn't mean this book is unhelpful. First, it reveals in tiny part how Scalia evaluates the briefs he reads and arguments he hears, which in itself is a fascinating peek. The authors also put things many people may have forgotten through lack of use into perspective. Finally, they remind lawyers and non-lawyers alike that you often have only one shot at winning your argument so you had best put your best foot forward. Scalia and Garner show you how to do it. Overall, this is a fun, informative and helpful read. Jerry

So well written, with examples from real court cases, as well as comments from judges on what they like to read in a brief. Garner and Scalia show the importance of a clear brief, being mindful and respectful of the judge's time, and ordering your statement logically. This reminds me of "The Elements of Style" by Strunk and White,but focused for successful legal writing. I am so glad I bought this book. Highly recommend!

Simply the best book on legal persuasive writing ever written. Interesting, useful, fun, full of great anecdotes. Terrific discussion of statutory interpretation. Great references to scholarly classical treatises on rhetoric. This book is wonderful both for its analysis of oral argument and for its discussion of written forms of persuasion, like briefs. I wish I had had it earlier. My only complaint is the same one I have with virtually all modern style manuals: they advocate a simplistic prose style, characterized by short, conversational sentences, avoiding unusual words, eschewing Latin phrases. But I personally often find prose that breaks these rules a refreshing change. I enjoy reading a word or phrase I rarely see but that is perfectly chosen. And I enjoy learning new words or phrases. This book would condemn two of the greatest legal prose stylists out there: John Marshall and Learned Hand, both of whose opinions often contained sentences that would not work so well conversationally, that were full of long, convoluted sentences and classical allusions. My sense is that in this joint work Justice Scalia, who can write rich and interesting prose, pushed back against some of the simplifying strictures of his co-author. Furthermore, I think that often too much emphasis on simple words and sentences serves to make more complex ideas too difficult to express or to understand. Thus, the book (like most books) argues against "jargon," but jargon, once learned, is often a much clearer way of expressing something than a rephrasing. And the Roe v. Wade anecdote is great! It explains a lot... In any case, I am hardly qualified to criticize Justice Scalia, whose writing is far beyond my own. Anyway, this is a great book.

Perhaps an appellate brief that you wrote would have been perfect if only the judge had read it. The lesson you learned, hopefully, was that there is no guarantee that a judge will read your brief. The lesson you can learn from "Making Your Case" is how to write so that the judges will read what you wrote - preferably before your oral argument. Writing in a quite candid, lucid and entertaining style, Scalia and Garner serve up tips that even the most experienced lawyers can learn from. If you find yourself approaching the court's word limit, for example, you may be minimizing the chances of having your brief read, as judges really do favor brevity. How do you write for a court that is notoriously dismissive of higher court precedents? How do you best respond to a judge who asks whether you would be content with a remand? These and other critical questions are addressed simply yet insightfully. If your legal education stressed the IRAC approach (Issue, Rule, Application, Conclusion), Scalia and Garner take you a step further by stressing a syllogistic approach. Even if you have already been exposed to all the best ideas about persuading appellate judges, you are still likely to gain much rom reading "Making Your Case" because the authors organize all those ideas in a way that makes them much easier to remember and keep them in mind as you prepare your written and oral arguments. Justice Scalia calls his approach to legal reasoning and argument "textualism," which I understand to mean that his decisions are driven by the language of the law and of the case. My impression from reading many of his decisions is that he is often driven by ideology, so I can't quite square his book with his decisions. I also question the book's fundamental statement that the overriding objective of a brief is to make the court's job easier, as I prefer to write primarily for the purpose of winning the case. My criticisms of "Making Your Case" are miniscule compared to those thrown at it by Richard Posner. But although I find Judge Posner's decisions generally more fair than those of Justice Scalia, I prefer the clarity of Justice Scalia's writing - especially when he teams up with Bryan Garmer. Judge Posner notwithstanding, Scalia and Garner have put together a gem that is likely to prove invaluable for law students as well as for trial and appellate lawyers who are still interested in improving their game. If you fall into either category, buy this book, read it two or three times, and then keep it handy as a reference. It should help you make your case.

I am a law professor who spent 25 years as a Plaintiff's lawyer before deciding to teach. I've been before the U.S. Circuit Courts of Appeal many times and state appellate courts a few times. One caveat to consider: I expect to be arguing before the United States Supreme Court in the future. I hesitate to be too ebullient, lest you think that I'm trying to curry favor. However, I think that this book is great. Why do I recommend it? First, it is short. This book will accomplish much of what other books try to teach about advocacy, but in many fewer pages. Secondly, it is practical. It teaches writing skills, speaking skills, and how to be persuasive with limited time. Finally, it is not just for lawyers. Anyone trying to be persuasive can apply the same skills to other situations. For those of you who are politically opposed to Justice Scalia (which, believe it or not, includes some law professors)this is a joint effort by Garner and Scalia, and they frequently disagree. Hearing both sides of the argument on how to write or speak persuasively will help you decide how you want to present your arguments. How do my political opinions and Justice Scalia's opinions mesh? Can I be fair? I think so. He's a Federalist, I consider myself an Anti-Federalist. He as supporter of administrative delegation, I think delegation of congressional responsibilities to administrative agencies is congressional abdication. In short, I'm not recommending this book because Justice Scalia and I agree on policy, because on many policy matters we don't. I'm recommending it because I think it will help you. You wont be disappointed with the book.

My only exposure to the courts has been the unfortunate experience of defending various complaints from my ex that continue to be served even to this day, 10 years after the divorce. So I'm no attorney and most of the time I've been in a courtroom, I'd gladly have been somewhere else. But still, when I'm not feeling trapped in the details of my personal situation, I've found the workings of the court and how motions and trials are decided to be quite fascinating. I'm an engineer, but I think the (sometimes) logical world of law might have been fun. The significance of some of Scalia's book, e.g., the minutiae of whether to use contractions, was probably lost on me. But I bought it based on some enticing interview snippets in the WSJ Law Blog and I was definitely not disappointed. I enjoyed the insight it offered into just how the whole thing works and found myself agreeing, on a number of occasions involving, surely, the more obvious points, that I'd noticed precisely that same thing myself but hadn't been sure to what degree it might be generalized. It explained things. I found lots of good advice that I'm sure will be portable to the far more ordinary life I lead having nothing to do with the law but a lot to do with getting along with people around me and, on occasion, trying to persuade them to my point of view. I also had a great time. The book was waiting for me Friday evening when I got home from work and by Saturday evening, I'd finished it completely. Along the way, I learned a lot and I also laughed a lot, out loud, probably every 4 or 5 minutes, at some new, insightful and humorously phrased observation about life or the law.

Lawyers please read this book. Not just for your edification; but for the benefit of the rest of us too. Why do so many people think lawyers are jerks? Perhaps it's got something to do with the way lawyers are trained that leads some of them to believe that arrogance, rudeness and boorishness are the trifectas of success in their profession. Apparently judges of all ilks - all the way up to Supreme Court Justices, have seen more than their fill of nasty advocate's behavior in their courtrooms. So have I. For the past five years I've trained trial lawyers, and some of the behavior I've seen inside courtrooms has not just been appalling, it's been stupid. As a non-lawyer, I must say that the vast majority of lawyers are not deserving of the stereotype they've been tagged with. However, there's a tiny minority whose nasty words and deeds more than compensate for the polite professionalism of the majority of their peers. Attention All Jerks: This book is for you. The most important aspect of this book may be the one you want to ignore; but pay attention to the primary theme that runs throughout it: Your spiteful, oafish and intemperate behavior in court, damages your prospects of winning. You aren't just harming your client. Your income is taking a beating too. Although this book is packed with invaluable advice for litigators and transactional lawyers alike, there is no more important advice than in this sentence from the Introduction: "Your objective in every argument therefore, is to show yourself to be worthy of trust and affection." Look, again at that sentence. Is there any business or profession in which that lesson would not be valuable? In fact, is there any business or personal relationship in which that lesson would not be valuable? That is why this book should be read by all advocates for any cause. If every lawyer in this country - and the world, read this book and fully absorbed the power of that one simple lesson, the profession might begin to alter its image, which as been around since, well, at least since Dick the butcher voiced an attractive sounding idea in Henry IV, part Two, "The first thing we do, let's kill..."

Great book, I enjoyed reading it. I am non-lawyer so I spent time having to read and re-read sentences and paragraphs but darn good book. Highly recommend it. Sometimes a person can be in discussion with an official, doctor, lawyer, cop ..whatever--it helps to remember arguments made in this book. Most folks just try to explain a situation, heaven forbid standing in front of a court or judge in a legal matter. But, this type of reading builds confidence, a strong vocabulary and so forth. It matters most trying to persuade a person or an institution..just winning, making your point in a clear coherent and cognizant way. This book can teach you these things.

This book though authored in context of US courts, however, many parts of it are true in Indian situation as well. It is a book which every lawyer practising in the High Courts and Supreme Court must read.

What a pleasure this book was! Although it was written for an American readership, there is plenty here that an English lawyer will enjoy. (Although the US system uses "briefs" in a different sense from us, there's plenty in that section of the book that you can apply to skeleton arguments in our own courts.) If you've been in practice then you will already know that brevity is a virtue, that you don't read a prepared speech to a court and that the key to good advocacy is preparation. The authors will generally confirm your existing prejudices about effective advocacy and amuse you while they do it. If you haven't yet been in practice, then you really should take note of the points the authors make. Personally, I have never believed that legal argument is as straightforwardly syllogistic as the authors contend, but they can probably live with my disagreement. Bryan Garner is well-known as an authority on legal writing in the US and deserves to be read here too; Scalia is well-known as a Justice of the US Supreme Court - surprisingly (to me, at any rate) this "intellectual anchor of the Court's conservative wing" has a sense of humour too. I enjoyed the bickering with his co-author over the best way of making citations (pp. 133 to 135).

On pouvait craindre que le plus tonitruant membre - désormais doyen de la faction conservatiste (républicaine) - de la cour suprême des Etats-Unis, puisse avoir à nous en apprendre ; ce d'autant que la jaquette destine l'ouvrage même aux plus expérimentés avocats... Même la photo en quatrième de couverture des auteurs posant replets, dans des costumes tout neuf avec des cravates immaculées sans aucune auréoles de gras, pouvait le laisser suspecter à la manière des ouvrages gastronomiques pratiquant le genre... Qu'on se rassure, il n'en est absolument rien ! Non seulement vous n'apprendrez aucune recette mais en plus vous perdrez votre temps. Que l'on comprenne que je me permets de "mettre un peu en boîte" car de son banc, Antonin Scalia - Nino voire Nini (pour le cénacle le plus intime) - ne se gêne jamais & n'épargne rien. Il a raison ; le métier le ne doit à personne. L'ouvrage présenté ici est donc une abomination qui n'a le mérite que d'être bref. Cet opuscule ne s'adresse qu'aux étudiants les moins éclairés par ce qu'il n'est truffé que d'évidences, lieux communs & autres balivernes. Le pire est qu'il n'est même pas drôle alors que Nino, sait être sarcastique à loisir ; ce qui est sa qualité la plus généralement reconnue et que j'aime. Mais avec l'âge & la routine, Scalia qui savait être appréciable jusqu'en 2005 (époque à laquelle il manqua la présidence de la cour faute de désignation par W Bush qui n'en voulut même pas...) est devenu aigri et commença à tourner en circuit fermé par une sorte de sclérose. Ce livre qui fut édité en 2008 illustre donc indéniablement un soucis de s'adresser aux autres ; ce qui n'a que très rarement été l'objectif de Scalia qui est l'inventeur d'un technique rigide de lecture de la constitution à la manière qu'il s'imagine lui-même de ce qu'elle était au XVIIIème. d"après une technique originale dont il est l'auteur décrié de façon de plus en plus copieuse. Dommage donc que ce géant produise si peu car il avait du matériel ; mais à décharge, je crains qu'il ne soit pas l'auteur du livre...

Though intellectually honest and very well written - for instance when talking about the lawyer-judge relationship - the book does nothing but reinforce the idea that in court a lawyer can do all the bells and whistles of his logic, rethoric, public speaking and other abilities, while the final word is and will always be spell by somebody who simply might not care... Nevertheless this is an invaluable book because helps lawyers to make less mistakes, and - maybe - judges think about their behaviour on the bench.

Book came in great quality. Absolutely love it. You can almost hear former Justice Scalia speaking as you read.