First 30

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.”

* * *

 

Follow The Law Project on Facebook and Twitter!


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.

* * *

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.

* * *

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.