The Legal Writer continues its series on what we can learn from the great teachers of writing. In this column, we highlight two masters: Antonin Scalia and Bryan A. Garner. In particular we focus on the advice they give in their preeminent book, Making Your Case: The Art of Persuading Judges. In Part I of this column we’ll address the principles of persuasion. In Part II, we’ll address persuasive-writing techniques and style. No one’s better to teach the skills of effective appellate and trial advocacy than Scalia and Garner. These two legal-writing powerhouses teamed up to offer invaluable advice to advocates in The Art of Persuading Judges.
Since publication in 2008, The Art of Persuading Judges has consistently received positive feedback from lawyers and scholars. One reviewer described it as akin to Strunk and White’s seminal Elements of Style.1 Another reviewer wrote that the book is like “a first-rate continuing legal education program.”2
Antonin Scalia, former Associate Justice of the Supreme Court of the United States, is best known for his straightforward and engaging writing style. Before taking the bench as a Justice, Scalia had a notable career as an assistant attorney general, University of Chicago law professor, and United States Court of Appeals for the District of Columbia Circuit judge. In 2016, Scalia passed away at 79. His legacy as one of the Court’s greatest writers lives on.
Bryan A. Garner, the world’s leading English-language legal-writing expert, is a lawyer, teacher, and lexicographer. A former director of the Texas/Oxford Center for Legal Lexicography at the University of Texas School of Law, Garner founded LawProse Inc., a nationwide provider of CLE training in legal writing, editing, and drafting for lawyers and judges. In 1995, Garner became the editor in chief of Black’s Law Dictionary, America’s most widely used law dictionary. Throughout his prominent career, Garner has authored many classics on legal writing, including The Winning Brief and Legal Writing in Plain English.
PRINCIPLES OF PERSUASION
“Lawyers possess only one tool to convey their thoughts: language.”3
All of Scalia and Garner’s 21 pieces of advice on argumentation stand out. They teach the basics – that lawyers must know their audience, their adversary’s case, and their most defensible terrain. Below are some of Scalia and Garner’s expert suggestions that go beyond the basics.
Attend to the standard of decision
Advocates should pay close attention when varying presumptions and burdens of proof govern issues. For example, in a criminal trial the prosecution must prove the defendant’s guilt beyond a reasonable doubt. When the applicable standard favors your case, emphasize that to the court. Remind the court that you and your adversary are on unequal playing fields. Advocates shouldn’t treat the standard of review as boilerplate. They should point out that the appellant is applying an incorrect standard. State this clearly in your standard-of-review, introduction, and summary-of-argument sections.
Don’t overstate your case
“[S]how the merits of [your] case and the defects of [your] opponents’ case – and let the object of the weakness of the latter speak for itself.”4 Overstating your case can directly harm your credibility. “So err, if you must, on the side of understatement, and flee hyperbole.”5 Avoid stating an unqualified “never” unless you’re 100 percent certain of a fact.
Stick to the age-old rule of advocacy
“[T]he first to argue must refute in the middle, not at the beginning or end.”6 By refuting first, you’ll be on defense. If you refute last, the judge will “focus on your opponent’s arguments rather than your own.”7 But don’t refute an argument your opponent might not have thought of.
Make space for the judge to read your argument
If you’re arguing after your adversary, “design the order of positive case and refutation to be most effective according to the nature of [your] opponent’s argument.”8 Leave room for the judge to listen to your main argument, especially when your opponent makes a convincing case. First, quickly demolish your opponent’s compelling argument. Then, deliver “your take on the case, your major premise, and your version of the central facts.”9
“Don’t try to defend the indefensible.”10
When a legal rule doesn’t favor your case, don’t spend an undue amount of time defending it. You don’t want to convey to the judge that you’re unreasonable. That can damage your whole case. Rather, “fess up at the outset.”11 There are two advantages to fessing up. First, the judge won’t think that you tried to sweep “unfavorable factors under the rug.”12 Second, the judge will think that you’re reasonable and you’ve “carefully considered these matters but don’t regard them as significant.”13
Be strategic about which arguments to advance
This is one of the most important steps in effective advocacy. “A mediocre advocate defending a good position will beat an excellent advocate defending a bad position nine times out of ten.”14 Don’t stick to a rejected point. Doing so might “color [your] judgment about which rulings lend themselves to effective challenge.”15 When strategizing, consult your associates.
Avoid disorganized arguments
Instead, pick three independent reasons why you should win, and develop them fully. Making 10 different arguments will tell the judge that you’re making scattershot arguments. On the surface, 10 different arguments might seem as if the lawyer overanalyzed something, but “in reality, it has been under analyzed.”16 Under analyzed because “counsel has not taken the trouble to determine which arguments are strongest or endured the pain of eliminating those that are weakest.”17
“Never, never waste the court’s time.”18
Make arguments as clear and concise as possible. Minimize the risk of irritating the judge. Once you’ve conveyed your argument, don’t linger “over [it] like a fine glass of port.”19 Successful legal arguments rarely contain “iteration and embellishment.”20 Don’t assess the brevity of your arguments on a page or word count, either. It’s good to have a “reputation as a lawyer who often comes in short of the limits.”21 The judge knows that the writing contains no padding.
Show how your client prevails under the law and this result is reasonable
“Explain why it is that what might seem unjust is in fact fair and equitable.”22 Some judges might decide based on their “moral sense” favoring a change in the law. But most will decide based on governing authorities.23 How a judge ultimately decides is never certain. So strive to both convey to the court that you prevail under the law and that the result you seek is rational. Make it easy for the judge to explain its rationale to a non-lawyer friend.
Don’t attempt emotional appeals
An emotional appeal is “misguided because it fundamentally mistakes [the judge’s] motivation.”24 Avoid making a “jury argument” before a judge. But there’s a difference between an overt appeal to emotion and presenting facts in a way that might unintentionally appeal to emotion. For example, “you may safely work into your statement of facts that your client is an elderly widow seeking to retain her lifelong home.”25
Tell the court what you think it should do. Don’t use trite phrases like “for all the foregoing reasons.” Treat the conclusion as a reminder to the judge of your principal arguments on the rule of law, and why the judge should rule in your favor. Argue that a court’s ruling otherwise would leave lower courts with uncertainty or produce frivolous litigation in the future.
“Leaving aside emotional appeals, persuasion is possible only because all human beings are born with a capacity for logical thought.”26
The most persuasive and rigorous form of logic is syllogism
The clearer the syllogism, the better. The winning party is the one who can convince the judge that its syllogism is closer to the main legal issue. Identify the main legal issue and convince the court of it. Don’t spend time arguing for a rule that applies to a subordinate issue.
Master the weight of precedent
It’s impossible to cite case law without knowing its precedential weight.27 Governing authorities strengthen an advocate’s persuasiveness. At the appellate level, the most important decisions to a case will be the ones decided by that same court. At the trial court level, the most important decisions will be the ones immediately superior to that trial court.28
DON’T IGNORE DICTA
“The most persuasive nongoverning case authorities are the dicta of governing courts . . . and the holdings of governing courts in analogous cases.”29 Moreover, the most persuasive cases will be the ones in which a litigant who’s similar to your client lost at the trial level but won on appeal.30
This column continues in the next edition of the Journal with Part II. The Legal Writer, in which we address Scalia and Garner’s techniques and style of persuasive writing.
- David F. Herr, Making Your Case: The Art of Persuading Judges By Antonin Scalia and Bryan A. Garner, 56 Fed. Law. 61, 62 (2009) (book review).↵
- Catherine M. Grainger, Making Your Case: The Art of Persuading Judges By Antonin Scalia and Bryan A. Garner, 40 Colo. Law. 89, 89 (2011) (book review).↵
- Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 61 (4th ed. 2008).↵
- Id. at 13.↵
- Id. at 15.↵
- Id. at 17.↵
- Id. at 18 (emphasis in the original).↵
- Id. at 20.↵
- Id. at 21.↵
- Id. at 22.↵
- Id. at 23.↵
- Id. at 24.↵
- Id. at 25.↵
- Id. at 27.↵
- Id. at 32.↵
- Id. at 41.↵
- Id. at 52.↵
- Id. It’s useless to argue to a trial court that Supreme Court case sustained your point if the “intermediate appellate court to which an appeal would be taken has already rejected that reading. Of course, when the intermediate appellate court has not spoken on that point, supreme-court opinions will be the most important.” Id.↵