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Book Summary - Making Your Case: The Art of Persuading Judges

Making Your Case: The Art of Persuading Judges is written by Antonin Scalia and Bryan A. GarnerAntonin 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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The 'Law v Fact' Distinction

In the book Thinking Like a LawyerFrederick Schauer provides a good explanation of the distinction between law and fact. In general, 'fact' is understanding and establishing what happened and 'law' is what we ought to do about it. 

[Legal reasoning tends to] assume that the interesting issues in Donoghue v. Stevenson' are about whether Mrs. Donohue ought to be able to recover against the ginger beer bottler despite the absence of privity, and mostly ignore the question of whether it really was a decomposed snail that came out of the bottle or just how ill, if at all, the sight of the snail actually made her."

We know after Raffles v. Wichelhaus that when both of two contracting parties are fundamentally mistaken about the object of the contract, there is no contract at all, but how do we know that there were two ships named Peerless, and how do we know that each of the parties really was mistaken?

Below is a great little example of the distinction between law and fact. 

Law 

Examples:

Is a manufacturer (or bottler) directly liable to the consumer when there is a decomposed snail in a ginger beer bottle?

Is there a contract tract when the contracting parties have different beliefs about what they are contracting for?

Is dire necessity a defense to a charge of murder?

Does a separate but nominally equal racially segregated school system violate the Fourteenth Amendment?

Fact

Examples:

Was it a decomposed snail?

Were there two ships named Peerless, or only one, or maybe even three?

How close to death were the shipwrecked sailors?

Do black children get a worse education in an all-black, legally segregated school whose physical facilities and teacher training are the same as those in the all-white schools?

Courts determine both fact and law. Richard D. Friedman in his journal article the Distinction Between Fact and Law, puts it this way. Determining facts is allogous to looking back on history and creating a 'mental film' of the event. Determining law 'is to prescribe the consequences to be attached'.

However, determining fact can be very difficult.

Facts, at least disputed facts, usually cannot be determined to, or nearly to, a certainty; thus, the fact-finding function is to reconstruct in imagination various possible accounts... of reality, assigning a probability to each. And the law-determining function must take this uncertainty into account, prescribing the consequences not simply for a given factual state but for a given distribution of possible factual states.

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Want to read more? You can read the journal article here and you can buy the book here.


How to Make a Judge Dislike You (Part 2)

The following points are from the book The Art of Persuading Judges. The author, Antonin Scalia, was a judge on the Supreme Court in the US for 30 years. The second author, Bryan A. Garner, is a professor at the Southern Methodist University Dedman School of Law and has written over 20 law books.

If you haven't read part 1, read it here. No need to read in order.

Now, how to make judges dislike you...

5. Present outdated authorities

One of the most interesting cases I ever saw argued was a U.S. Sixth Circuit case in which both attorneys were arguing about the application of a case that had been overturned. When Judge Wellford finally asked one of the attorneys (who happened to be representing himself) whether he knew that the case was no longer good law, he responded (with great composure): ‘No, Your Honor, but I would point out that opposing counsel didn’t know it either.’

6. 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.

When following our advice not to postpone an answer, refrain from saying something like “Your Honor, I was planning to address that point later on, but since you ask I shall come to it at once.” Frankly, the court doesn’t care a fig whether you were planning to address it later or not—you’ll get no points for that even if the judges believe you. And the clear suggestion that the nasty ol’ judge has ruined your orderly plan of presentation will not be well received. Just answer the question.

7. 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.

Nothing, perhaps, so detracts from the force and persuasiveness of an argument as for the lawyer to claim more than he is reasonably entitled to claim. Do not ‘stretch’ cases cited and relied upon too far, making them appear to cover something to your benefit they do not cover. Do not try to dodge or minimize unduly the facts which are against you. If one cannot win without doing this—and it is seldom he can by doing it—the case should not be appealed.

8. Tell stupid jokes

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.

* * *

Want to read more? Buy the book here.


How to Make a Judge Dislike You (Part 1)

The following points are from the book The Art of Persuading Judges. The author, Antonin Scalia, was a judge on the Supreme Court in the US for 30 years. The second author, Bryan A. Garner, is a professor at the Southern Methodist University Dedman School of Law and has written over 20 law books.

Now, how to make a judge dislike you...?

1. Appeal to the judges emotions, not reason

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. Unorganise your materials

Fumbling through papers during an embarrassing silence not only wastes your argument time; it makes you look like an incompetent. 

I speak from the fullness of my heart when I say that I have seen more trouble in Court over disorderly papers than from any other cause. So I decline to treat as a triviality beneath counsel’s notice this matter of the tidiness and accessibility of the documents in the case.

3. Praise the judge's questions

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.

4. Have irritating mannerisms

...we have seen just about every distracting and annoying sort of mannerism. Some appear to be unconscious and unintended: drumming one’s pencil on the counsel table, swaying back and forth during argument, fixing one’s gaze on the lectern or off into the middle distance instead of looking at the judge who is asking a question, fiddling with papers on the lectern, going through the argument with a frozen smile that’s either silly or supercilious.

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Want to read more? Buy the book here.


Legal Reasoning and Syllogism: A Primer

The book The Art of Persuading Judges by Antonin Scalia and Bryan A. Garner, lays out the basics of legal reasoning. They assert that all arguments fall under 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.

* * *

Want to read more? Buy the book here.


Criminology: Why Do People Commit Crimes?

 
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Criminology is the science of criminal Behaviour. Larry J. Segal has written a great introductory criminology textbook and he has set out six major theories on why people commit crimes. 

1. Rational Choice Theory

According to the contemporary rational choice approach, law-violating behavior occurs when an offender decides to risk breaking the law after considering both personal factors (i.e., the need for money, revenge, thrills, and entertainment) and situational factors (i.e., how well a target is protected and the efficiency of the local police force). People who believe that the risks of crime outweigh the rewards may decide to go straight. If they think they are likely to be arrested and punished, they are more likely to seek treatment and turn their lives around than risk criminal activities.

Some examples include:

Economic Opportunity Boston Magazine ran an article recently about a university lecturer with a master’s degree from Yale and a doctorate in cultural anthropology who took another job to pay the bills: call girl. Rather than living on the meager teaching salary she was offered, the “Ivy League hooker” chose to make the tax-free $140 per hour for her services (she charged $200, handing over $60 to the escort service that arranged her dates). She left the business when she became financially self-sufficient.

Theft: For example, there are professional shoplifters, referred  to as boosters, who use complex methods in order to avoid detection. They steal with the intention of reselling  stolen merchandise to professional fences, another group of  criminals who use cunning and rational decision making in their daily activities.

Drugs: Research does in fact show that from its onset drug use is controlled by rational decision making. Users report that they begin taking drugs when they believe that the benefits of substance abuse outweigh its costs (e.g., they believe that drugs will provide a fun, exciting, thrilling experience).

2. Biosocial Theory

Rather than viewing the criminal as a person whose behavior is controlled solely by conditions determined at birth, most biocriminologists believe that physical, environmental, and social conditions work in concert to produce human behavior; this integrated approach is commonly referred to as biosocial theory.

Biochemical - The major premise of the theory is that crime, especially violence, is a function of diet, vitamin intake, hormonal imbalance, or food allergies.

Neurological - The major premise of the theory is that criminals and delinquents often suffer brain impairment, as measured by the EEG. Attention deficit hyperactivity disorder and minimal brain dysfunction are related to antisocial behavior.

Genetic - The major premise of the theory is that criminal traits and predispositions are inherited. The criminality of parents can predict the delinquency of children.

Evolutionary - The major premise of the theory is that as the human race evolved, traits and characteristics have become ingrained. Some of these traits make people aggressive and predisposed to commit crime.

3. Psychological Trait Theory

...trait theories focuses on the psychological aspects of crime, including the associations among intelligence, personality, learning, and criminal behavior.

Psychodynamic - The major premise of the theory is that the development of the unconscious personality early in childhood influences behavior for the rest of the person’s life. Criminals have weak egos and damaged personalities. The research focuses of the theory are on mental disorders, personality development, and unconscious motivations and drives.’ Such as a sociopath and psychopath. ..some psychologists distinguish between sociopaths and psychopaths, suggesting that the former are a product of a destructive home environment whereas the latter are a product of an inherited genetic defect.

Behavioral - The major premise of the theory is that people commit crime when they model their behavior after others they see being rewarded for similar acts. Behavior is reinforced by rewards and extinguished by punishment.

Cognitive - The major premise of the theory is that individual reasoning processes influence behavior. Reasoning is influenced by the way people perceive their environment. [Such as,] the child abuser perceives that he is superior and more important than others and hence is able to have sex with whomever and whenever he wants.

4. Neutralization Theory

They view the process of becoming a criminal as a learning experience in which potential delinquents and criminals master techniques that enable them to counterbalance or neutralize conventional values and drift back and forth between illegitimate and conventional behavior. One reason this is possible is the subterranean value structure of American society. Subterranean values  are morally tinged influences that have become entrenched in the culture but are publicly condemned. They exist side by side with conventional values and while condemned in public may be admired or practiced in private. Examples include viewing pornographic films, drinking alcohol to excess, and gambling on sporting events.

5. Hirschi’s Social Bond Theory

[Hirschi] assumes that all individuals are potential law violators, but they are kept under control because they fear that illegal behavior will damage their relationships with friends, parents, neighbors, teachers, and employers. Without these social ties or bonds, and in the absence of sensitivity to and interest in others, a person is free to commit criminal acts.

6. Latent Trait Theory

Their model assumes that a number of people in the population have a personal attribute or characteristic that controls their inclination or propensity to commit crimes. This disposition, or latent trait, may be either present at birth or established early in life, and it can remain stable over time. Suspected latent traits include defective intelligence, damaged or impulsive personality, genetic abnormalities, the physical-chemical functioning of the brain, and environmental influences on brain function such as drugs, chemicals, and injuries. Some latent trait theorists maintain that this master trait is inflexible, stable, and unchanging throughout a person’s lifetime, while others recognize that under some circumstances a latent trait can be altered, influenced, or changed by experiences and interactions.

An example includes impulsivity:

Gottfredson and Hirschi trace the root cause of poor self-control to inadequate childrearing practices that begin soon after birth and can influence neural development. Once experiences are ingrained, the brain establishes a pattern of electrochemical activation that remains for life. Parents who refuse or are unable to monitor a child’s behavior, to recognize deviant behavior when it occurs, and to punish that behavior will produce children who lack self-control. In a sense, lack of self-control occurs naturally when steps are not taken to stop its development. These impulsive kids grow up to become poor parents, who use improper discipline, and produce another generation of impulsive kids.

 
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Victimology: Four Major Theories

 
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Victimology attempts to understand why some people are more prone than others in becoming victims of crime. The textbook, Criminology by Larry J. Segal gives us four major theories on victimology.

Of course, these theories are not inferring right and wrong, they are establishing cause and effect. They do not suggest, 'as the victim did x, therefore the victim deserved it.' 

1. Victim Precipitation Theory

According to victim precipitation theory, some people may actually initiate the confrontation that eventually leads to their injury or death.

Examples:

In 1971, Menachem Amir suggested female rape victims often contribute to their attacks by... pursuing a relationship with the rapist.

A woman may become the target of domestic violence when she increases her job status and her success results in a backlash from a jealous spouse or partner.

Victim Impulsivity:

A number of research efforts have found that both male and female victims have an impulsive personality that might render them abrasive and obnoxious, characteristics that might incite victimization.

It is possible that impulsive people are not only antagonistic and therefore more likely to become targets, but they also are risk takers who get involved in dangerous situations and fail to take precautions.

2. Lifestyle Theory

Some criminologists believe people may become crime victims because their lifestyle increases their exposure to criminal offenders.

Examples:

Single women who drink frequently and have a prior history of being sexually assaulted are most likely to be assaulted on [college] campus.

People who belong to groups that have an extremely risky life—homeless, runaways, drug users—are at high risk for victimization; the more time they are exposed to street life, the greater their risk of becoming crime victims.

3. Deviant Place Theory

The more often victims visit dangerous places, the more likely they will be exposed to crime and violence. Victims do not encourage crime, but are victim prone because they reside in socially disorganized high-crime areas where they have the greatest risk of coming into contact with criminal offenders, irrespective of their own behavior or lifestyle.

4. Routine Activities Theory

...the volume and distribution of predatory crime (violent crimes against a person and crimes in which an offender attempts to steal an object directly) are closely related to the interaction of three variables that reflect the routine activities of the typical American lifestyle:

1. The availability of suitable targets, such as homes containing easily saleable goods

2. The absence of capable guardians, such as police, homeowners, neighbors, friends, and relatives

Even the most desperate criminal might hesitate to attack a well-defended target…

...an undefended yet attractive target (not referring to sexual) becomes an irresistible objective for motivated criminals.

3. The presence of motivated offenders, such as a large number of unemployed teenagers. 

 
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