Making Your Case the Art of Persuading Judges Pdf Free Download

Features

Making Your Case

May 1, 2008, 1:01 pm CDT

Bryan Garner and Antonin Scalia.
Photo by Steve Petteway,
Collection of The Supreme Court of the United States

In his 21 years on the U.S. Supreme Courtroom, no one has seriously accused Justice Antonin Scalia of being unable to express himself. Cass R. Sunstein, the University of Chicago law professor, has likened his writings to those of Justices Robert H. Jackson and Oliver Wendell Holmes. University of Wisconsin law professor Ann Althouse says she "constantly dearly" wishes Scalia'south colleagues had his sense of wit and mode.

From the demote he's an acute—and sometimes withering—questioner. On the printed page, he's a direct and engaging writer. And from the lectern he's a polish and self-assured orator—a cocky-professed fan of harsh truths skillfully articulated, even when they are not his ain.

In his new volume, Making Your Case: The Fine art of Persuading Judges, Scalia teamed with Bryan A. Garner, editor-in-chief of Blackness'south Law Lexicon. Excerpted here, the volume reveals ways in which clear writing, clear speaking and—to a higher place all—clear thinking can help you make your example.

—Allen Pusey

WRITING THE BRIEF

Value clarity above all other elements of way In brief-writing, one feature of a good style trumps all others. Literary elegance, erudition, sophistication of expression—these and all other qualities must exist sacrificed if they detract from clarity. This means, for case, that the same give-and-take should exist used to refer to a particular key concept, even if elegance of manner would avert such repetition in favor of various synonyms. It means that you must carelessness interesting and brainy asides if they sidetrack the drive toward the point yous are making. Information technology means that you should never utilise a word that the judge may accept to look up.

It means that cipher important to your statement should appear in a footnote.

Further, it means shunning puffed-upwards, legalistic language. Make your points and ask for your relief in a blunt, straightforward fashion.

Incorrect:

The undersigned counsel do hereby for and on behalf of their clients, for the reasons explained hereinbelow, respectfully request that this Honorable Court consider and hereby rule that no issues of material fact do exist in the instant controversy, and that a final judgment exist entered in favor of the client of the undersigned counsel (sometimes herein referred to equally "Defendant" or "Cross-Plaintiff") and confronting Plaintiff.

Right:

Johnson requests entry of summary judgment.

Clarity is amply justified on the basis that it ensures you'll be understood. Only in our antagonist system it performs an additional function. The clearer your arguments, the harder information technology will exist for your opponent to mischaracterize them. Put yourself in the shoes of a lawyer confronting an opposing brief that is almost incomprehensible. You struggle to figure out what it ways—and so does the courtroom. What an opportunity to characterize the opposing statement in a way that makes it weak! This can't happen to you—your opponent will not be able to distort what you say—if you are clear.

USE PARAGRAPHS INTELLIGENTLY; SIGNPOST YOUR ARGUMENTS

Section headings are not the but means of mapping your statement. Within each captioned department, paragraph breaks perform the same role. The outset sentences of paragraphs (your 5th-grade teacher called them "topic sentences") are equally important as captioned section headings in guiding your readers through your brief—telling them what next thought is about to be discussed. Paragraph breaks should not occur randomly, inserted simply considering the last paragraph was getting too long. They should occur when yous are moving on to a new subpoint and wish to point a change of topic.

1 writer on cursory-writing (who must remain nameless) suggests that no paragraph should be more than five sentences long. We retrieve that'due south bad advice. Your readers didn't get in to the bench by reading only Classic Comics. Judges are accustomed to legal argumentation, which often—indeed, usually—requires more v sentences to develop an idea. Use equally many sentences as the idea demands. If the paragraph is becoming unusually long (say a page of your brief), break the idea into two paragraphs if possible. (¶ "Another cistron leading to the aforementioned conclusion … .") Some ideas will accept only five sentences—indeed, some may have only three. Simply a brief with paragraphs of rigidly uniform length is well-nigh sure to be a bad brief.

USE WHAT It TAKES

In helping the reader follow the progression of thought —both between and within paragraphs—guiding words are essential. Consider the difference between the following two progressions: (ane) "He is non a great sprinter. He came in tertiary." (two) "He is not a neat sprinter. But he came in third." The word only signals that the adjacent thought will somehow qualify the point simply fabricated. Or your 2d judgement might have been "After all, he came in 3rd"—the Afterwards all signifies that the upcoming thought will affirm the previous one. Or yous might have used a subordinating conjunction: "Although he is not a keen sprinter, he came in 3rd."

At that place are many such guiding words and phrases: moreover, even so (preferably non at the head of a sentence), although, on the other hand, withal, to bear witness the point, etc. These words and phrases turn the reader's head, and then to speak, in the direction you want the reader to look. Skilful writers apply them abundantly.

Usually, the very best guiding words are monosyllabic conjunctions: and, only, nor, or, then and nevertheless. Professional writers routinely put them at the caput of a sentence, and so should you. At that place's a myth abroad that you should never begin a judgement with a conjunction. But look at any species of reputable writing—whether it'south a skilful paper, journal, novel or notfiction piece of work—and you're likely to discover several sentences per folio outset with one of those little connectives. Yous tin hardly achieve a flowing narrative or argument without them.

To clarify abstract concepts, give examples. Legal briefs are necessarily filled with abstruse concepts that are hard to explain. Nothing clarifies their meaning as well as examples. One tin describe the interpretive canon noscitur a sociis as the concept that a discussion is given significant by the words with which it is associated. But the reader probably won't really grasp what you're talking about until you requite an example similar to the one we gave before: "pins, staples, rivets, nails and spikes." In that context, "pins" couldn't refer to lapel ornaments, "staples" couldn't refer to standard foodstuffs, "nails" couldn't refer to fingernails, and "spikes" couldn't refer to hairstyles.

Photo past Franz Jantzen,
Collection of the Supreme Courtroom of the United States

MAKE IT INTERESTING

To say that your writing must exist clear and brief is not to say that it must exist boring. Of grade, you should apply the usual devices of constructive writing: simile, metaphor, understatement, illustration and antithesis. Only you shouldn't use these or other devices of style for their ain sake. They are helpful only if they crusade the serious legal points y'all're making to be more than brilliant, more lively and hence more memorable.

3 uncomplicated ways to add interest to your writing are to enliven your discussion choices, mix up your sentence structures and vary your judgement lengths. With words, ask yourself whether there's a more colorful fashion to put it. With sentences, baby-sit confronting falling into a monotonous subject-verb-object rut—specially when it'southward the same subject, sentence after sentence. And recall that an occasional arrestingly brusque sentence tin deliver real punch ("This wolf comes as a wolf.").

Banish jargon, hackneyed expressions and needless Latin. By "jargon" we mean the words and phrases used almost exclusively past lawyers in place of plain-English language words and phrases that express the aforementioned thought. Jargon adds goose egg but a phony air of expertise. A nexus, for example, is nothing more than or less than a link or a connection. And what is the instant case? Does information technology have annihilation to exercise with instant coffee? Alas, to tell the truth, it's no different from this example or even here.

Write normal English language. Such as a demonstrative adjective (such action) can almost always be replaced with the good old normal English this or that. And hereinbefore with earlier. And pursuant to with under. The key is to avoid words that would cause people to look at you funny if yous used them at a party. Pretend that you're telling your story to some friends in your living room; that'due south how you should tell it to the court.

Give the reader credit for having a encephalon—and show that you have 1, too. Don't leave your common sense at the door. If your brief repeatedly refers to the secretarial assistant of transportation and mentions no other secretary, it is light-headed to specify parenthetically, the first time y'all mention the secretary of transportation, "(hereinafter 'the secretary')." No one volition remember that your later references to "the secretary" denote the secretary of defense, or peradventure your own secretary.

Hackneyed expressions are verbal formulations that were wonderfully brilliant when showtime used, simply whose vividness—through overuse—no longer pleases simply bores. Such-and-such a case "and its progeny" is a good instance. Or the assertion that an argument is "fatally flawed" or "flies in the face of" something; that your adversary is "painting with a wide castor"; that a merits isn't "feasible"; that the "parameters" of a dominion aren't settled; or that something is true "across mayhap of dubiousness." The test is: Have yous seen the vivid phrase a lot? If so, odds are information technology's a platitude.

Some Latin expressions are convenient autograph for rules or principles that have no English autograph equivalent (res ipsa loquitur, for example, or inclusio unius est exclusio alterius). Simply avoid using other Latin phrases, such equally ceteris paribus, inter alia, mutatis mutandis and pari passu. Judges are permitted to show off in this fashion, just lawyers must non. And the judge who does non happen to know the obscure Latin phrase you have flaunted will recollect you a twit.

MAKING THE Argument

APPRECIATE THE IMPORTANCE OF ORAL ARGUMENT, AND KNOW YOUR OBJECTIVES

Many lawyers view oral argument as simply a formality, specially in courts that make a practise of reading the briefs in advance. Sure, it gives counsel a chance to show off earlier the client. Just equally far as affecting the outcome is concerned, what can 20 minutes or half an 60 minutes of oral statement add to what the guess has already learned from reading a few hundred pages of briefs, underlining meaning passages and annotating the margins?

This skepticism has proved false in every study of judicial beliefs we know. Does oral argument change a well-prepared approximate's mind? Rarely. What often happens, though, is that the judge is undecided at the fourth dimension of oral statement (the instance is a close one), and oral statement makes the difference. It makes the divergence because it provides information and perspective that the briefs don't comprise.

A brief is logical and sequential. If it contains five points, they will often be addressed in some logical order, not necessarily in the gild of their importance. The amount of space devoted to each point, moreover, has more to do with its complexity than its force. Someone who has read your brief, therefore—and especially someone who has read it some days ago—may take a distorted impression of your case. The reader may think that point No. one, which takes a 3rd of your brief to explain, is the well-nigh meaning attribute of your statement, whereas in fact point No. 3, which covers half every bit many pages, is really your trump card. Oral argument can put things in perspective: "Your Honors, we have 4 points to our cursory, all of which we remember merit your attending. Just the heart of our argument is point No. iii, on issue preclusion, and I'll plow to that now."

Oral statement likewise provides information that the brief can't incorporate. Most evidently, it gives the appellee an opportunity to answer to responses and new points contained in the appellant's answer brief. At least every bit of import, it provides both sides the opportunity to answer questions that have arisen in the judges' minds.

The nigh obvious of these should accept been anticipated and answered in the briefing, but repetition of the answer to a persistent doubter tin be helpful. And the judges are bound to have in listen questions unanticipated by the briefs—either considering the reply is too obvious or considering the question is too subtle. Oral argument is the time to lay these judicial doubts to remainder. And finally, the quality of oral argument tin can convey to the courtroom that the brief already submitted is the production of a highly capable and trustworthy attorney, intimately familiar with the facts and the law of the instance.

In descending gild of importance, your objectives in oral statement are these:

To answer any questions and satisfy whatever doubts that take arisen in the judges' minds.
To answer—if you're counsel for the appellee—new and telling points raised in the appellant'south reply brief. Oral argument is your only chance.
To call to the judges' minds and reinforce the noun points made in your brief.
To demonstrate to the courtroom, past the substance and manner of your presentation, that you lot are trustworthy, open and forthright.
To demonstrate to the court, by the substance and fashion of your presentation, that you have idea long and hard about this case and are familiar with all its details.
To demonstrate to the court, mostly by the mode of your presentation, that you are likable and non hateful-spirited.

HAVE YOUR OPENER DOWN PAT

Anyone who has done public speaking knows that the hardest part is the opener. Your adrenaline is pumping. You're trying to keep nervousness out of your voice and manner, establish eye contact with your audience and project a steady, fifty-fifty tone. This is no time to worry near what you're going to say. 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 comprise, a brief outline of the subjects you intend to address: "I promise to discuss this morn, first, why this court has jurisdiction, so why the trial courtroom'due south finding of negligence was unsupported, and finally why the amercement awarded are plain excessive." Y'all should be under no illusion that you volition actually get to achieve all these subjects—that ultimately depends on the court (which is why y'all should put your strongest betoken first). Simply setting forth at the starting time the full range of what you lot hope to address may induce the judges to make their questions more concise.

Photo by Franz Jantzen,
Collection of the Supreme Courtroom of the United States

Be CAUTIOUS Nearly HUMOR

Never tell prepared jokes. They nigh invariably flop. 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 homo argues confronting two beautiful ladies like this, they're going to have the last word." No 1 laughed. Onlookers said that during an embarrassing silence, Primary Justice Burger scowled at the advocate.

Every bit for uncanned humor, we accept heard counsel with an easygoing humour break the tension and foster amicable discourse past an unscripted witticism—e'er gentle and often self-deprecating. The issues are that (i) Merely someone with a genuinely skillful sense of humor, and a experience for when humor is appropriate, tin pull this off; (two) Many of us who remember nosotros have those qualities don't; and (3) Some judges have no sense of humour. All in all, the do good is not worth the run a risk. You lot should, of course, display restrained appreciation for any attempt at humor by the courtroom.

NEVER POSTPONE AN ANSWER

Perhaps the most annoying of all responses to a estimate's question is this: "Your Honor, I'll become to that bespeak later on. Starting time, … ." Go where the court wants you to go! Besides offending the court's nobility, you invite the estimate to conclude (equally most will) that yous have no effective response. And you invite suspicion that the promised "later" will never come. (Justice John M. Harlan asserted that the usual outcome of a postponed reply was a never-addressed question.) At the very least the questioner is distracted from your ensuing discussion, waiting eagerly for that to exist done with and for the question to be addressed. As elegantly described by Ben Westward. Palmer, a Minneapolis practitioner of the mid-20th century, "Everything you lot may say thereafter may be suspended in the air like a levitated trunk or more likely a corpse—the corpse of your expressionless case."

When post-obit our communication not to postpone an answer, refrain from proverb something similar, "Your Honor, I was planning to accost that bespeak afterwards, only since you ask I shall come to information technology at once."

Frankly, the court doesn't care a fig whether yous were planning to address it later or not—yous'll go no points for that even if the judges believe y'all. And the articulate suggestion that the nasty ol' guess has ruined your orderly plan of presentation volition not be well-received. Only respond the question.

LEARN HOW TO HANDLE A DIFFICULT Gauge

You will sometimes see a judge whose questions are designed not to obtain enlightenment but to demonstrate to colleagues the weakness of your case. During your exchange with such a questioner, exist certain to maintain middle contact. Don't display your discomfort by looking downwards at some imaginary text whence will come up your redemption. Look the judge straight in the heart and continue responding in a professional, firm manner.

It's always a mistake to evade questions, only especially so when the question comes from a difficult gauge. That judge will persist, and y'all'll end up spending fifty-fifty more than time reasoning with someone who will not be persuaded. Confront the question squarely with your all-time respond, and endeavour to move on.

Sometimes such a questioner, after you have answered equally best yous can, will proceed to press the aforementioned point, even though (indeed, because) y'all are unable to say anything more. You must devise a polite, nonalienating way to cease this exchange, or information technology will consume much of your argument time. After a decent amount of fourth dimension has been spent on the point, it would be appropriate to say, "Your Accolade, I cannot answer to your objection with annihilation other than what I have already said."

A similar problem is presented when a gauge's questions almost one part of your presentation are and then numerous that the time remaining for an important but yet-to-be-addressed portion is growing short. You must try, politely, to regain control of the subject matter. The court will not take it awry if, after responding to i question, y'all continue quickly: "With the court's permission, I would like to plow now to … ."

Whatsoever else you lot do when confronted by a hostile and unreasonable guess, don't reply in kind. Don't become hostile yourself; don't display acrimony, badgerer or impatience. Keep telling yourself that you owe it to your client—because you do.

Still, lawyers are entitled to take great delight in the wonderful comeuppances to judicial boorishness that some of their more than rash predecessors have devised. Our favorite was also a favorite of Justice Robert H. Jackson. A noted barrister, F.East. Smith, had argued at some length in an English court when the gauge leaned over the demote and said: "I have read your example, Mr. Smith, and I am no wiser than I was when I started."

To which the barrister replied: "Possibly non, My Lord, but far better informed." Smith, who later became a famous judge equally the Earl of Birkenhead, could reportedly carry off such snappy rejoinders with impunity.

We doubt that, but in any case we don't recommend that y'all emulate him.

BEWARE INVITED CONCESSIONS

We've advised you to volunteer concessions that conscientious deliberation shows are necessary. But concessions that you're pressed to make on horseback, at oral argument, are something else. The unduly accommodating lawyer—a oftentimes observed fauna, especially in appellate courts—has given abroad many a instance. The police force books are filled with affirmances that would have been reversals or remands for further proceedings were it not for the concession of a crucial fact by accommodating counsel. And propositions of constabulary that might well take been exceedingly hard for an opinion to establish have ofttimes been happily resolved (for purposes of the case at hand, at least) by foolish concessions.

Whatsoever judge who presses you for a concession might well use it against yous. That judge may, for example, be testing the validity of your basic premise—or rather, the allegiance of your adherence to that basic premise. Permit's say you're defending the lawfulness of an officer'due south traffic stop on the ground that there was an objectively valid ground for the stop, such equally a broken taillight on the vehicle. Counsel for the defence force contends that the stop was unlawful considering the real reason for information technology was the officer's suspicion that the occupants of the car were drug-runners. You lot might get the following beloved-coated enquiry from the court: "Counsel, surely you would agree that an officer could not pull a car over—fifty-fifty a car with a broken taillight—solely for the purpose of harassing its occupants."

What a wonderful opportunity for y'all to show that y'all are just as reasonable a person as this judge. But if you lot ascension to this bait, you will have abandoned the fundamental premise of your case: that whatever the subjective motivation for a stop, it is validated by objective indication of likely cause. For being so all-around, you can expect the court'southward opinion excluding the prove derived in the traffic stop to read: "Counsel has acknowledged that the subjective intent of the absorbing officer is relevant, and we run across no difference between an invalidating intent to harass and an invalidating intent to search for drugs without probable crusade."

It is not unusual for a judge to come to the demote, having read all the briefs, with a clear idea of what the judgment ought to be but for ane missing fact, or merely for one possible legal obstruction. If the judge tin become you to concede that fact, or to concede a betoken that would make that legal obstacle irrelevant, the stance is all just written. You should not cooperate in your ain destruction.

Excerpted from Making Your Case: The Art of Persuading Judges, by Antonin Scalia and Bryan A. Garner. Published by Thomson/West (2008)

Reprinted with permission.

Boosted coverage:

Exclusive ABA Journal interview

Podcast of the interview

Consummate transcript

Inside the interview

Give u.s. feedback, share a story tip or update, or report an mistake.

sledgepribary.blogspot.com

Source: https://www.abajournal.com/magazine/article/making_your_case