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Making Your Case: The Art of Persuading Judges
by Antonin Scalia, Bryan A. Garner (Author)
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Product Details
- Binding: Hardcover
- ISBN-10: 0314184716
- ISBN-13: 9780314184719
- Edition: 1
- Number Of Pages: 269
- Publication Date: April 28, 2008
- Publisher: Thomson West
- Release Date: April 28, 2008
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Product Description
In their professional lives courtroom lawyers must do these two things well: speak persuasively and write persuasively. In this noteworthy book, two of the most noted legal writers of our day Justice Antonin Scalia and Bryan A. Garner systematically present every important idea about judicial persuasion in a fresh, entertaining way. Making Your Case: The Art of Persuading Judges is a guide for novice and experienced litigators alike. It covers the essentials of sound legal reasoning, including how to develop the syllogism that underlies any argument. From there the authors explain the art of brief-writing, especially what to include and what to omit, so that you can induce the judge to focus closely on your arguments. Finally, they show what it takes to succeed in oral argument. The opinions of Justice Scalia are legendary for their sharp insights, biting wit, and memorable phrasing. The writings of Bryan A. Garner, editor in chief of Black s Law Dictionary®, are respected inside and outside legal circles for their practical guidance on the art of writing and advocacy. Together the Scalia-Garner team has produced a fresh, innovative approach to a timeless topic.
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Making Your Case: The Art of Persuading Judges
Review by Richard L. Weaver II, Ph.D.
As a former professor and writer of popular college textbooks on the subject of speech communication, I often wished that more of my students would take the subject seriously, absorb the rules, and apply them in their own speeches and conversations. I have even written a book -- Public Speaking Rules! All You Need for a Great Speech -- that contains many of the same ideas as those in Scalia's and Garner's book, and yet, many people (including many lawyers if you listen to Scalia and Garner) just don't seem to get it. Just as I think my book is straight-forward, easy-to-read, logically presented, and insightful, theirs is, too. Just as I think my book should be required reading for any first year law student, or anyone who has already completed his or her first year of law school but has not yet read it, I think theirs is also. It's not that we have written similar books as much as the fact that so many people -- lawyers, ministers, teachers, politicians, public servants, and others -- just aren't reading, absorbing, and applying information that is readily available, easily accessible, and simple to apply. Scalia and Garner's book is definitely a speech book. Their 245-pager is divided into three large parts: 1) General Principles of Argumentation, 2) Legal Reasoning, and 3) Briefing (the crafting of the oral argument itself). Within these parts are 115 brief sections, some as short as one or two sentences, others as long as 25 paragraphs -- two of these more lengthy sections appear in the part on "Briefing," and within the sub-section, "Architecture and Strategy." One of these lengthier sections covers outlining the brief and the other deals with arranging the parts of the brief -- both essential skills. Now, you have to understand that this book is intended for lawyers, and some of the terminology is profession-specific. Although I liked the 35-page discussion of principles of argumentation -- how to tailor your arguments for a judge, different from arguing before a jury -- and tactics to use with difficult judges, lazy judges, and their law clerks, I liked the section on writing style (discussed in a moment here) better. They give the view from the bench when lawyers react to bad questions from the judge and describe the likely outcomes. They also offer ways to avoid confrontations while still making your argument. As I said, while I like the information on argumentation, I found their 29-page discussion of "Writing Style" especially strong and valuable. This excellent reference book is concise and entertaining. There is nothing stuffy or boring in their approach or presentation.. There are "a-ha" moments on every page, and, overall, this is a very informative and certainly useful book for every new attorney. It goes without saying, after reading this review, that I found this book authoritative, fascinating, and insightful.
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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 ... Read More
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If you are a fan of his work and just starting out in law school this book has quite a bit of knowledge and I found it pretty interesting.
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This book was recommended to me by my undergraduate moot court coach, and it was very helpful for both oral argument and brief-writing competitions. The book is written for practicing attorneys, and gives detailed hints and guidelines for what to do and what not to do when arguing before a judge whether in oral or written form. Some of the advice seems obvious, but other points are nuanced and not intuitive. The coauthors disagree in a couple of areas, and the debate is interesting and amusing to read. It is not long, and there is a lot of information packed into the 200 pages. I would recommend this book for anyone who is serious about wanting to improve their legal argument skills, especially those who don't have the time for a lot of extra reading.
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Making Your Case: The Art of Persuading Judges is a amazing book that I the pleasure to read.
I will recommend this book. It is a very complete book that actually gives many example to understand different strategy.
Every Attorney should purchase this book!
Raphael S. Barchichat
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