Wednesday, July 1, 2009

Practice Tips From Supreme Court Justice Antonin Scalia

According to information gathered from several news articles, U.S. Supreme Court Justice Antonin Scalia and Bryan A. Garner spoke at the State Bar of Texas annual meeting within the last few days and discussed how to persuade judges with the written word and in oral argument.

Garner, a Texas lawyer and president of a legal advocacy consulting firm, is co-author with Scalia of "Making Your Case: The Art of Persuading Judges," published last year. The two, and in particular, Justice Scalia, served up quite a few helpful practice tips during this presentation.

Brief Writing

For writing briefs, Scalia said, "Treasure simplicity." He also told the attendees, "You don't get any credit for eloquence," and added, "Just make it simple and tell us your point. Your job is to make a complex case simple, not a simple case complex." This would obviously also apply as advice for oral argument as well.

Attorneys were advised to never underestimate the power of a short sentence. Turning to grammar, Scalia endorsed the use of conjunctions at the beginning of a sentence, even starting a sentence with "but."

As far as the use of contractions, Scalia and Garner have agreed to disagree, but Justice Scalia favored leaving them out of briefs. Scalia dubbed them "Jacobin" and argued they "pull everything down to the street level."

Scalia also frowned upon a brief containing lots of italics for emphasis. He deadpanned that legal writing with lots of italics tends to read "like a high school girl's diary."

According to the articles reviewed, Scalia saved his sternest warning for the issue of citations. He strongly recommended characterizing cited precedents accurately. The Justice was quoted as saying, "When a judge sees that you are playing fast and loose with a citation, he is not going to believe the rest of your brief."

Another hot topic discussed was the use of footnotes. Scalia, despite his co-author's strongly held alternative view, endorsed the use of footnotes -- even to advance arguments. However, he reiterated that he wants citations placed in the text.

Oral Argument

As for oral argument, Scalia told the lawyers to welcome questions from the bench, to be likable, and to make every effort to enunciate words correctly and carefully, particularly justices' names and any Latin words. In other words, never use words you can not pronounce. He counseled lawyers to look judges in the eye when addressing the court.

Scalia also noted a major pet peeve of his: when lawyers respond to a hypothetical example by saying it is "not this case." Going through his mind at that point, Scalia said, is the thought, "I know it's not this case, you idiot." But appellate judges must make decisions that govern many cases, not just the one before them, he explained.

Scalia and Garner gave other pieces of advice, such as speaking firmly as if presenting the law and not an opinion on what the court's decision should be. They also recommended simply carrying only an empty manila folder with notes written on it to the argument as opposed to a distracting array of documents and folders. It was also recommended that firms choose the best-equipped lawyer on the team to present the argument.

Also recommended, as a matter of respect, was yielding to the judge's speaking, even if that means stopping midword.


Information for this post was gathered from the following sources:

"Scalia Airs Pet Peeves at Texas Bar Meeting" Posted Jun 29, 2009, 09:14 am CDT By Debra Cassen Weiss on the ABA Journal website (http://www.abajournal.com/).

"Antonin Scalia advises lawyers on effective legal writing in Dallas" by Matthew Waller of The Dallas Morning News (June 28, 2009).

"Scalia Discusses Conjunctions, Contractions and Pet Peeves at Texas Bar Event" by
Miriam Rozen for the Texas Lawyer (June 29, 2009).

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