Making Your Case: The Art of Persuading Judges is written by Antonin Scalia and Bryan A. Garner. Antonin Scalia was a judge on the Supreme Court in the US for 30 years. Bryan A. Garner is a professor at the Southern Methodist University Dedman School of Law and has written over 20 law books.
Below is a collection of the most useful ideas from the book.
Enjoy!
On General Argumentation
1. Don’t Appeal to Judge’s Emotion
Appealing to judges’ emotions is misguided because it fundamentally mistakes their motivation. Good judges pride themselves on the rationality of their rulings and the suppression of their personal proclivities, including most especially their emotions. And bad judges want to be regarded as good judges. So either way, overt appeal to emotion is likely to be regarded as an insult.
2. Never Overstate Your Case
You’ll harm your credibility—you’ll be written off as a blowhard—if you characterize the case as a lead-pipe cinch with nothing to be said for the other side.’ So err, if you must, on the side of understatement, and flee hyperbole.
3. Know Your Opponent’s Case
Don’t delude yourself. Try to discern the real argument that an intelligent opponent would make, and don’t replace it with a straw man that you can easily dispatch.
4. Lead With Your Strongest Argument
Why? Because first impressions are indelible. Because when the first taste is bad, one is not eager to drink further. Because judicial attention will be highest at the outset. Because in oral argument, judges’ questioning may prevent you from ever getting beyond your first point.
5. Preemptively Refute the Opposition
Anticipatory refutation is essential for five reasons. First, any judge who thinks of these objections even before your opponent raises them will believe that you’ve overlooked the obvious problems with your argument. Second, at least with respect to the obvious objections, responding only after your opponent raises them makes it seem as though you are reluctant, rather than eager, to confront them. Third, by systematically demolishing counterarguments, you turn the tables and put your opponent on the defensive. Fourth, you seize the chance to introduce the opposing argument in your own terms and thus to establish the context for later discussion. Finally, you seem more even-handed and trustworthy.
6. Make Space for Your Own Arguments
If an opponent has said something that seems compelling, you must quickly demolish that position to make space for your own argument.
7. Concentrate Your Fire
A mediocre advocate defending a good position will beat an excellent advocate defending a bad position nine times out of ten. Scattershot argument is ineffective. It gives the impression of weakness and desperation.
8. Don’t Try to Defend the Indefensible
Fessing up at the outset carries two advantages. First, it avoids the impression that you have tried to sweep these unfavorable factors under the rug. Second, it demonstrates that, reasonable person that you are, you have carefully considered these matters but don’t regard them as significant.
On Legal Reasoning
All legal arguments fall under either positive or negative syllogisms.
Leaving aside emotional appeals, persuasion is possible only because all human beings are born with a capacity for logical thought. It is something we all have in common. The most rigorous form of logic, and hence the most persuasive, is the syllogism.
Legal arguments can be expressed syllogistically in two ways:
Positive syllogisms:
Major premise: All S is P.
Minor premise: This case is S.
Conclusion: This case is P.
Negative syllogisms:
Major premise: Only S is P.
Minor premise: This case is not S.
Conclusion: This case is not P.
What falls under the major premise?
Legal argument generally has three sources of major premises: a text (constitution, statute, regulation, ordinance, or contract), precedent (caselaw, etc.), and policy (i.e., consequences of the decision). Often the major premise is self-evident and acknowledged by both sides.
What falls under the minor premise?
The minor premise, meanwhile, is derived from the facts of the case. There is much to be said for the proposition that legal reasoning revolves mainly around the establishment of the minor premise.
And finally, some examples:
So if you’re arguing from precedent, your argument might go:
Major premise: Our cases establish that a prisoner has a claim for harm caused by the state’s deliberate indifference to serious medical needs.
Minor premise: Guards at the Andersen Unit ignored the plaintiff’s complaints of acute abdominal pain for 48 hours, whereupon his appendix burst.
Conclusion: The plaintiff prisoner has a claim.
Or if you’re arguing text:
Major premise: Under the Indian Commerce Clause of the U.S. Constitution, states cannot tax Indian tribes for activities on reservations without the express authorization of Congress.
Minor premise: Without congressional authorization, South Dakota has imposed its motor-fuel tax on tribes that sell fuel on reservations.
Conclusion: South Dakota’s tax is unconstitutional.
On Writing Briefs
Banish Jargon and Cliche Phrases
By “jargon” we mean the words and phrases used almost exclusively by lawyers in place of plain-English words and phrases that express the same thought. Jargon adds nothing but a phony air of expertise.
Don't use words and phrases like:
"Nexus," "the instant case," "pursuant," "hereinbefore," "fatally flawed," "flies in the face of," "painting with a broad brush," "viable," and "beyond peradventure of doubt."
On Oral Argument
1. Master the Use of the Pause
Perhaps the rhetorical device most undervalued and indeed ignored by lawyers is the pause. A strategic pause after an appropriate lead-in can add emphasis to whatever phrase or sentence immediately follows.
2. Be Clear on What You Want the Court to Do
The judges we’ve consulted say that it’s lamentably common for lawyers not to know how to fill in this blank: “The Court therefore orders that _________________________.”
3. Master Your Opener
For this part of your presentation, commit your words to memory (though try not to deliver them as though by rote). Even for the opener, however, don’t read from a prepared text.
Your opening should usually consist of, or at least contain, a brief outline of the subjects you intend to address: “I hope to discuss this morning first why this court has jurisdiction, then why the trial court’s finding of negligence was unsupported, and finally why the damages awarded are plainly excessive.”
4. Be Cautious With Humour
In Roe v. Wade, an assistant attorney general for the State of Texas, who was arguing against two women lawyers, led with what he probably considered courtly Southern humor: “Mr. 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. Onlookers said that during an embarrassing silence, Chief Justice Burger scowled at the advocate.
5. Never Postpone an Answer
Perhaps the most annoying of all responses to a judge’s question is this: “Your Honor, I’ll get to that point later. First, . . . .” Go where the court wants you to go! Besides offending the court’s dignity, you invite the judge to conclude (as most will) that you have no effective response. And you invite suspicion that the promised “later” will never come.
6. Never Praise a Question
Never—never—patronize a judge by volunteering “That’s a very good question.” Of course it is! All judges’ questions are ex officio brilliant. “[F]or heaven’s sake, forget about the rather trite response ‘I’m glad you asked that question’ or ‘That question goes to the very heart of the case.’ We have all heard this response to our questions, and we are all a little bit skeptical about it.”
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