Customer Reviews

Making Your Case: The Art of Persuading Judges

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If you're a trial lawyer handling your first appeal, you should absolutely read this book cover-to-cover. I've practiced solely appellate law for ten years, seen hundreds of appellate arguments, written hundreds of briefs and argued nearly a hundred cases, attended national trainings on appellate practice, and taught hundreds of new attorneys how to handle their first appellate case. I agree with almost everything the authors have to say-- and what credible authors!

My disagreements:
1) Never summarize your case in the "conclusion" section of the brief. They advise this, and note that many disagree with this. I emphatically disagree with it. A conclusion in the body of the point, at its end, may do very well, but the so-called "prayer for relief" section needs to be one sentence that says precisely what you want the court to do, and nothing else. This way the court knows exactly where to flip to find the remedy you're requesting, and doesn't have to parse a page of text to find it.

2) "And its progeny" is hackneyed? What are you supposed to say? This case and all the cases which grew out of it? Sprung from it? Were decided after it and based on it in some way? Terms which they call "hackneyed" are often the quickest and most precise way to phrase something. So just ignore that paragraph.

3) They "skirt" the issue, by failing to skirt the issue, of women's dress. They only say, "wear dark colors." The new female attorneys do not believe me when I say judges expect them to wear skirt suits to court. I've seen women show up in red shirts under striped pantsuits worn with sandals. They believed they looked professional, but really, they had lost ten points in credibility already. It would have been nice to have a Supreme Court justice address female dress in the courtroom.

4) Quoting. They give the impression that you should never quote, and you should always paraphrase. I disagree. In my opinion, you should have a quote for the standard of review, and a quote for everything that might be controverted. I will summarize general case law into a nice smooth paragraph. But the standard of review is always a series of quotes and cites, and anything that I think the judges might doubt I quote (e.g., if a juvenile invoked right to counsel before being certified, that invocation went poof after they were certified, so until it was reasserted, the cops were free to read him his rights and question him-- that needs quotes.)

5) Sexist language. They disagree on how to deal with this. What you can't do, with all due respect, Justice Scalia, is use "man" for everything, because then you sound like one of those 1950's women-hating guys in horn-rimmed glasses. All the women in the room will think you a caveman. Most sexist language can be avoided easily and grammatically. Where it can't, I find it helpful to just use the gender of the main party in the controversy.

6) Drafting the brief. They assume you have a month to work on your case. They might as well advise you to have your fairy god-mother finish it for you. So, follow their advice, but squeeze it into the three days you actually have. E.g., instead of writing out an outline of your entire case, when you start your point, write your point relied on, then make a descriptive heading for each section of your case (e.g., Facts, Standard of Review, Law on admitting a breath test, the state failed to lay a proper foundation for the admission of the test results, the other evidence failed to prove intoxication, conclusion.) Then you've outlined your case and written your headings all at once.

7) In a criminal case, it's perfectly fine for the state to call the appellant, "the appellant," throughout the case. It's not "too cute," as the authors say, because the state is always "the state," so their side is already depersonalized. And, it makes it really easy for the appellate court to remember who's who.

8) Never use footnotes for anything you want the court to read. I completely agree with Scalia's writing on this issue.

9) In oral argument, if you're through, you need to sit down. Now. They talk about having a big lengthy end summary. That may be required in the United States Supreme Court, but it's pretty ridiculous elsewhere. My shortest argument was forty seconds long. (Yes, I won, and yes, they were visibly relieved.) I almost always leave half or more of my time unused. And do, do, do, say, "If there are no further questions," pause briefly and make eye contact with all judges, "we ask that you" and state what you want the court to do (remember that one sentence in your prayer for relief?). That's a much more effective close to your argument than trying to summarize your whole case for judges who just wish you'd sit down.

So, I say definitely read this book-- even experienced counsel will find something in it that can improve their practice. But also realize this book is written for a general appellate audience, and especially the US Supreme Court, and therefore needs to be tweaked to fit practice in your specialty.

I am not a lawyer, but I love reading about persuasion and influence. This book caught my attention out of left field, but it certainly added a lot of value to my understanding of persuasion from a logical and argumentative point of view.

Most of the books I've read on persuasion focus on the emotional appeals that move people and mention that you need to give a rational argument for the decision so the persuadee can feel good about it. This book teaches you how to make that rational argument, but it does more than that. It teaches you how to frame the argument before it is made so that it will be more persuasive when it is made. The portion focused on the development of the syllogism was particularly interesting.

Definitely a book that you will want to read whether your are in the legal arena or not - if you want to know how to influence and persuade.

Whether or not you agree with Justice Scalia's opinions from the Supreme Court, this book as a primer on briefs and oral argument is excellent. I wish that I had this book for moot court. The brief writing section was far better than any of the books I had to help me. The oral presentation section identified solutions to problems that frustrated me. If you are not a lawyer you will likely find the oral argument section interesting and helpful, but find the minutia of the brief writing section boring. As a lawyer, I will reread this book from time to time.

Justice Scalia recognizes there are other viewpoints; he discusses them but then explains why his view is better.

The book presents all viewpoints and follows with their own and why theirs is better. For example, the book points out that although they believes underlining is a crude throwback to the typewriter , Bluebook approves the use of underlining. The book states that underlining is unnecessary in the 21st century with a word processor. They follow with suggesting that Bluebook should be revised. The book suggests using italics where you would have used underlining. They add that very limited use of italics is far better than liberal use. Justice Scalia's differences of opinions extend to his coauthor.

Bryan Garner, author of Garner's Modern American Usage, The Elements of Legal Style and editor in chief of Black's Law Dictionary did not agree with Justice Scalia on all points. Some section headings state a definite rule, followed by "or not." For example: "Consider using contractions occasionally--or not." These sections take the form of majority opinion vs. minority opinion. Mr. Garner's opinion is presented, Justice Scalia follows with his opinion and his analysis on why Mr. Garner was wrong and why Justice Scalia is right.

The book is organized logically, and with brevity.
The book in its 245 pages discusses:
* the general purposes of oral argument,
* legal reasoning, brief writing, and finally
* the crafting of the oral argument itself.

It discusses these topics more thoroughly than some books that are three times its size. Subsections have a clear heading and to the point discussion. Most subsections, although fully treated, are one to two pages long, some less than a page.

Finally
The book shows how to tailor your arguments for a singular audience, the judge, distinguished even from arguing before a jury. It gives tactics to use with difficult judges, lazy judges, and their law clerks. It gives the view from the bench when the lawyer reacts to bad questions from the judge. It describes the likely outcomes, and it offers way to avoid confrontation, while still making your argument. It is a good book.

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.

We all need to make arguments. Whether it is something as benign as trying to decide where to have lunch or something as serious as whether Mom needs to be place in an enhanced care facility, we need to be able to think, write, and speak clearly about what we want to do. How do we form the argument? Does our order of presentation matter? What should we know about the person or board we are presenting to?

This little book by Justice Antonin Scalia and Bryan Garner is written for lawyers who go before judges, but almost everything in here can be easily translated into everyday life. The craft of a lawyer is just a special case of the kinds of reasoning, arguing, disputing, and presenting we do almost every day of our lives.

Do not think this is a book on Scalia's judicial philosophy. The authors point out several times that you must know the philosophy and predilections of the judge you are going before and adjust your arguments accordingly. They also remind the reader several times that they are writing for lawyers presenting to judges and not advice they would give judges.

The book consists of 115 little chapters that run from a single paragraph to a few pages. These are divided into four broad groups: General Principles of Argumentation, Legal Reasoning, Briefing, and Oral Argument. While these last three are clearly legal terms, you can simply thing of them as Building Your Argument, Presenting Your Argument Through Concise Writing, and Arguing Your Case Verbally. Isn't it obvious how you can use these things at work, in your community, and even within your social settings?

While we normally associate legal writing with dry as dust and inscrutable prose, this book is light, lively, and has nice touches of humor. The authors cite wonderful authorities on language, argument, presentation, writing, and speaking and provide a nice list of works for additional reading at the end. There is also a helpful index to find just the sections you are looking for.

I think this book is terrific and have placed with my very favorite references on writing and language. If you care what I think, you should get this book, read it, and enjoy the benefits of these talented and brilliant minds.

Reviewed by Craig Matteson, Ann Arbor, MI

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.

As a plaintiff's lawyer who also does appeal work, this book was very interesting but little is memorable after a few days. I'm glad I signed it out from the library instead of buying it. It's just a repeat of basic (naive) advocacy principles. The image is that your judge will really conscientiuosly read things and be careful to rule properly. The book is very well-edited--so you won't read much of substance that is realistic or cynical--like about judicial intellectual dishonesty. Scalia gives no insight on how to get an honest opinion from an appellate court--how to keep appeals judges from ignoring things in the record (or making up things) just so they can come up with a very good-appearing opinion that is wrong because it has result-oriented oddities that only the parties' lawyers know about. Summary judgment (and more recently dismissal for failure to state a claim) have become procedural easy-outs that have created widespread dishonesty by judges who want to get rid of cases (usually because they are infatuated with defense counsel). Often defense counsel succeed only because they loudly and assertively repeat their propaganda--and judges (or their staff) go right along (letting perception become reality). Also, de novo judicial review is in reality deferential to the trial judge (with unwillingness to reverse--finding any way possible (dishonest) to affirm).

There were some very good points--like not being lured into making concessions during oral argument. There might be one detail that prevents the judges from (honestly) ruling a certain way--so you could get a question that so temptingly and nicely tries to get you to agree with an innocuous point, etc. There is a great example of how the judges will write about such a concession in their opinion. Another good point is Scalia's belief that whatever doesn't help your case hurts it (i.e., don't fill your briefs, etc. with unhelpful things).

There could have been some mention of realities like that most judges and staff never in their lives had to prosecute a civil case (or never had a burden-of-proof in their lives) or never had to deal with defense counsel in a contentious manner (e.g., trying to get discovery through a motion to compel)--and how to work with that in the justice system (those judges and staff).

I also didn't like Justice Scalia's pompous "dissents" on some points by Bryan Garner. They stand out in hindsight as ugly parts. It appears that Bryan Garner did the heavy lifting in writing the book.

This book is a fantastic product by America's wittiest Justice and one of the foremost legal writers today (Bryan was entrusted with revising the Federal Rules of Civil Procedure).

It is really a product that means different things to two different audiences. First, it serves as an exemplary checklist for the legal advocate. No matter what forum an attorney appears in - your local town adminstrative agency all the way to the U.S. Supreme Court, this functions as a comprehensive checklist of things that we were taught in law school - and promptly forgot.

For the lay person, it offers more than just a highly entertaining read. First it demystifies the judicial process for a public whose perceptions of the justice system have been unfortunately based on half-baked Hollywood products, from L.A. Law to Ally McBeal.

But in the classical sense, it is also a treatise on decision making, rhetoric, and the balancing we all perform as humans. In this, it follows, perhaps consciously, the great classics to which it repeatedly alludes.

A great read.

A good (quick) read overall. The majority of the advice is pretty orthodox, but there are some very interesting isolated topics throughout the book, including the sections on the logical sequencing of writing and Garner's push to move substantive citations away from the text.

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.