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 Present outdated authorities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.