Making Your Case: The Art of Persuading Judges 1st (first) edition [Antonin Scalia] on Amazon.com. You’re trying to keep nervousness out of your voice and manner, establish eye contact with your audience and project a steady, even tone. Perhaps the most annoying of all responses to a judge’s question is this: “Your Honor, I’ll get to that point later. Johnson requests entry of summary judgment. *FREE* shipping on qualifying offers. The clearer your arguments, the harder it will be for your opponent to mischaracterize them. This can’t happen to you—your opponent will not be able to distort what you say—if you are clear. Sometimes such a questioner, after you have answered as best you can, will continue to press the same point, even though (indeed, because) you are unable to say anything more. Give us feedback, share a story tip or update, or report an error. Chief Justice, and may it please the court, it’s an old joke, but when a man argues against two beautiful ladies like this, they’re going to have the last word.” No one laughed. in the eye and continue responding in a professional, firm manner. They are helpful only if they cause the serious legal points you’re making to be more vivid, more lively and hence more memorable. (¶ “Another factor leading to the same conclusion … .”) Some ideas will take only five sentences—indeed, some may take only three. In his 21 years on the U.S. Supreme Court, no one has seriously accused Justice Antonin Scalia of being unable to express himself. To say that your writing must be clear and brief is not to say that it must be dull. At the very least the questioner is distracted from your ensuing discussion, waiting eagerly for that to be done with and for the question to be addressed. Antonin Scalia was a judge on the Supreme Court in the US for 30 years. You must try, politely, to regain control of the subject matter. Oral argument is your only chance. From the bench he’s an acute—and sometimes withering—questioner. You struggle to figure out what it means—and so does the court. There are many such guiding words and phrases: moreover, however (preferably not at the head of a sentence), although, on the other hand, nonetheless, to prove the point, etc. And finally, the quality of oral argument can convey to the court that the brief already submitted is the product of a highly capable and trustworthy attorney, intimately familiar with the facts and the law of the case. All rights reserved. Any judge who presses you for a concession might well use it against you. Write normal English. Never tell prepared jokes. Photo by Franz Jantzen,Collection of the Supreme Court of the United States. Let’s say you’re defending the lawfulness of an officer’s traffic stop on the ground that there was an objectively valid basis for the stop, such as a broken taillight on the vehicle. Bryan A. Garner is a professor at the Southern Methodist University Dedman School of Law and has written over 20 law books. Published by Thomson/West (2008) Reprinted with permission. Recent Post-Koken Decision out of Philadelphia in ... Legislature Confirms Two New Judges to Luzerne Cou... Conahan and Ciavarella Seek Change of Venue, Carriers Not Liable for Emergency Responder Costs, ARTICLE: A St. Patrick's Day Parade of Proverbs. To demonstrate to the court, mostly by the manner of your presentation, that you are likable and not mean-spirited. Or that the attorney might have to answer questions from three or more appellate court judges or justices during oral argument. Or you might have used a subordinating conjunction: “Although he is not a great sprinter, he came in third.”. Counsel for the defense contends that the stop was unlawful because the real reason for it was the officer’s suspicion that the occupants of the car were drug-runners. University of Wisconsin law professor Ann Althouse says she “constantly dearly” wishes Scalia’s colleagues had his sense of wit and style. 1, which takes a third of your brief to explain, is the most significant aspect of your argument, whereas in fact point No. And you invite suspicion that the promised “later” will never come. Don’t leave your common sense at the door. Making Your Case The Art of Persuading Judges By Antonin Scalia and Bryan A. Garner Thomson/West, 245 pp. But he came in third.” The word but signals that the next thought will somehow qualify the point just made. But avoid using other Latin phrases, such as ceteris paribus, inter alia, mutatis mutandis and pari passu. Published by Thomson/West (2008), Do you use 'good English'? Besides offending the court’s dignity, you invite the judge to conclude (as most will) that you have no effective response. Give the reader credit for having a brain—and show that you have one, too. Judges are accustomed to legal argumentation, which often—indeed, usually—requires more than five sentences to develop an idea. Pretend that you’re telling your story to some friends in your living room; that’s how you should tell it to the court. But a brief with paragraphs of rigidly uniform length is almost sure to be a bad brief. Rarely. Good writers use them abundantly. We doubt that, but in any case we don’t recommend that you emulate him. making your case the art of persuading judges Media Publishing eBook, ePub, Kindle PDF View ID e45a8714e Apr 24, 2020 By Gérard de Villiers them the book teaches lawyers how they should argue their case and how they should not argue their case in a variety Making Your Case: The Art of Persuading Judges is written by Antonin Scalia and Bryan A. Garner. If it contains five points, they will often be addressed in some logical order, not necessarily in the order of their importance. But if you rise to this bait, you will have abandoned the fundamental premise of your case: that whatever the subjective motivation for a stop, it is validated by ob­jective indication of probable cause. Clarity is amply justified on the ground that it ensures you’ll be understood. And from the lectern he’s a smooth and self-assured orator—a self-professed fan of harsh truths skillfully articulated, even when they are not his own. If the paragraph is becoming unusually long (say a page of your brief), break the idea into two paragraphs if possible. Bryan Garner and Antonin Scalia.Photo by Steve Petteway,Collection of The Supreme Court of the United States. Use as many sentences as the thought demands. With sentences, guard against falling into a monotonous subject-verb-object rut—especially when it’s the same subject, sentence after sentence. You will sometimes encounter a judge whose ques­tions are designed not to obtain enlightenment but to demonstrate to colleagues the weakness of your case. Copyright 2020 American Bar Association. And hereinbefore with earlier. All legal arguments fall under either positive or negative syllogisms. Excerpted from Making Your Case: The Art of Persuading Judges, by Antonin Scalia and Bryan A. Garner. Antonin Scalia was a judge on the Supreme Court in the US for 30 years. And what is the instant case? If your brief repeatedly refers to the secretary of transportation and mentions no other secretary, it is silly to specify parenthetically, the first time you men­tion the secretary of transportation, “(hereinafter ‘the secretary’).” No one will think that your later references to “the secretary” denote the secretary of defense, or perhaps your own secretary. You can hardly achieve a flowing narrative or argument without them. Book Summary - Making Your Case: The Art of Persuading Judges, Book Summary - The Tools of Argument: How the Best Lawyers Think, Argue, and Win, Southern Methodist University Dedman School of Law.