Making Your Case: The Art of Persuading Judges

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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.

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

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.

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.