Making Your Case: The Art of Persuading Judges

JUSTICE SCALIA TO ATTORNEYS: PERSUADE ME…

By Claudia Cook
Claudia Cook is a Reference Librarian at the
Bernard E. Witkin Alameda County Law Library
She can be reached at Claudia.Cook@acgov.org.

      
Making your case: The art of persuading judges, Justice Antonin Scalia and Bryan E. Garner, ThomsonWest, May 2008

“Don’t underestimate the importance of facts.”

This volume discusses both the substance and style of legal writing designed to persuade judges. The judicial perspective is from Justice Antonin Scalia. Justice Scalia is known for his keen wit and trenchant legal reasoning and writing. The co-author is Bryan E. Garner, Editor of Black’s Law Dictionary, among other works, who certainly knows his legal vocabulary.

The book covers general principles of argumentation, legal reasoning, briefing and oral argument. The authors maintain a conversational tone, using idioms and anecdotes and quotes from Cicero to present day jurists. It is an entertaining read like Woe Is I and other good for you books. It succeeds by all its own criteria. The authors argue that this style would benefit legal writing and advocacy in general, especially in briefs and oral arguments.

It is well organized and even the index uses the same breezy yet informative tone, including such terms as “emotion”, “stopping when judge interrupts”, “words and phrases to avoid” and “voir dire, pronunciation of”.  It is also very thorough; the subheadings under “briefs” are almost a full page long.  It also speaks to authority, including headings of “court rules”, “case law” and “citations”.

Stylistically, some suggestions are to avoid jargon, clichés and unnecessary Latin terms. (See Index heading “words and phrases to avoid”.) Doesn’t “in the instant case” simply mean “in this case”? Use “this or that action” instead of “such action,” replace “hearinbefore” with “earlier” and “pursuant to” with “under.”

 You can make persuasive arguments without using archaic phrases.

“Make it interesting” by considering more colorful words, mixing up sentence length and structure. Short sentences can pack a punch. All of this is to make your stellar legal arguments stand out and be memorable, but not at the expense of the substance of your case.

Pronunciation counts. The comedian Lenny Bruce said that if Einstein had pronounced it “nucular” fission, no one would have taken him seriously. (Although Jimmy Carter did call himself a “Nucular” engineer.)

They explore what motivates judges and equally what irritates, annoys and is “most likely not to succeed with judges.”  Common wisdom is that a “jury argument” will almost certainly not be a good “judge argument”.  Juries may be persuaded by blatant appeals to emotion and sentimentality whereas these authors characterize this kind of tactic in front of judges as “misconduct”.  Many judges also find such appeals insulting to their intelligence, assuming as it does that judges are on the same level intellectually as a juror or other layperson.

What does motivate judges is that, for basics, attorneys understand and convey forcefully and convincingly what they want the court to do, they understand and articulate whether this is within the court’s power to do, and attorneys convince them that what they are asking for is the best solution for now and for the future.

While appeal courts are not “fact courts”, “facts should not be overestimated.”  But appellate judges unlike trial judges are concerned not only with justice for the individual but also with public policy and how this decision may play out in the broad picture down the road.

They point out the fallacy that oral argument is not nearly as important as briefs and other pleadings. During oral argument, attorneys should maintain a presentation style that projects a respectful equality with the judge. They should listen closely, and restrain emotions such as anger or contempt toward other parties. Employ the masterful use of a pause.

And finally, never, ever ask for extra pages!

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