Tuesday, March 23, 2010

BOOK REVIEW: Making Your Case: The Art of Persuading Judges by Justice Antonin Scalia and Bryan A. Garner

This is a reprint of an article that appeared in the March/April 2010 edition of The Pennsylvania Lawyer magazine.


ARTISTRY LESSONS FOR LAWYERS


Book Review

By

Daniel E. Cummins, Esquire

Daniel E. Cummins, Esquire is an insurance defense/coverage attorney with the Scranton, Pennsylvania law firm of Foley, Cognetti, Comerford, Cimini & Cummins (www.foleycognettilaw.com). He also writes for his own blog, Tort Talk, which provides updates on Pennsylvania civil litigation and insurance law issues (www.torttalk.com).



Making Your Case
The Art of Persuading Judges
By Antonin Scalia and Bryan A. Garner
Thomson/West, 245 pp. $29.95

Who better to provide tips on appellate brief writing and oral argument than Justice Antonin Scalia, a Justice of the United States Supreme Court with nearly 25 years on that Bench? So thought Bryan Garner when he combined with Justice Scalia to create their recently published book, Making Your Case: The Art of Persuading Judges.

Co-author Bryan Garner is no lightweight himself. He is a lawyer and an expert grammarian who, in addition to serving as the editor in chief for Black’s Law Dictionary, has also written several books of his own on legal writing and proper grammar.

The over-riding message of both authors with respect to both brief writing and oral argument is to strive for simplicity in all areas. As they succinctly state, a lawyer’s job is “to make a complex case simple, not a simple case complex.”

In terms of brief writing, the authors exhort the reader to “treasure simplicity” through the use of tight sentences and coherent paragraphs that easily flow into one another. Stylistically, both Scalia and Garner rail against the use of bold typeface and underling of words and citations. The authors also humorously warn against the excessive use of italics, noting that “[c]onstant italicizing gives your brief the tone of an adolescent diary….”

While primarily consistent with each other’s opinions on proper brief writing, Justice Scalia, as he is wont to do, dissented on a few points. For example, while Garner suggests that the use of contractions (can’t, don’t, that’s) may not be entirely improper in a brief and can serve to assist in the flow of a sentence, Justice Scalia, showing his conservative bent, summarily rejects contractions as having no place in proper legal writing.

Justice Scalia also scoffs at Garner’s separate suggestion elsewhere in the book that perhaps legal writing would benefit from citations being taken out of the text and placed instead in footnotes, again to ease the flow of the brief reader’s eyes across the page. Scalia countered by arguing that attorney’s eyes are trained to read through citations in the text.

He also noted that it is important that the signals at the beginning of citations be in the text to show the reader the import of the citation. Justice Scalia made the additional excellent point that the placement of citations in footnotes would frustrate the normal flow of the reading of a brief by causing the reader’s eyes to continually shift back and forth from text to footnotes in an irritating fashion in order to follow the argument.

Having a proper flow was also the underlying theme of the tips provided with respect to oral argument. The authors again emphasized the goal of keeping matters as simple as possible in oral presentations as there is no credit given by the court for eloquence.

Common sense recommendations such as using simple words, avoiding words you do not know how to pronounce, and looking the judge in the eye during argument were provided. The authors also promoted simplicity in recommending that attorneys only come to court with the materials they need so as to avoid any frantic and distracting shuffling of papers during argument.

The authors also give excellent advice on how to structure the order of one’s argument, depending upon whether one represents the appellant or the appellee. Numerous tips are also given on how to prepare for numerous interruptions in the form of comments and questions from the bench. Justice Scalia and Mr. Garner also emphasized the always applicable advice of preparing for argument by viewing the case from your opponent’s perspective in order to cover all possible grounds and weaknesses applicable to one’s own case.

With regards to the oral presentation to the court, Scalia and Garner also strongly urge the reader to voice his or her argument in a firm and positive fashion as if presenting a correct statement of the law and its application to the case at hand as opposed to one’s opinion as to what the decision should be.

Making Your Case by Justice Antonin Scalia and Bryan A. Garner is an excellent resource that has its place on the shelf of every law office library to consult time and again. Written in a “conversational style,” the book is an easy read that, on its surface, consists of detailed lessons and reminders useful for improving one’s written and oral argument skills.

On a deeper level, the book can also be utilized as a motivating tool that can give one the confidence of appearing before any court, at the trial or appellate level, armed with the knowledge that the case is being advocated through brief writing and oral argument in a manner that would be approved by a learned Justice of the United States Supreme Court. Such could be the difference between making your case or not.

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