Making Your Case : The Art of Persuading Judges

by Scalia, Antonin

ISBN13: 9780314184719

ISBN10: 0314184716

Format: Hardcover

Pub. Date: 2008-04-28

Publisher(s): Thomson Reuters

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Summary

Two noted legal writers--Justice Antonin Scalia and Bryan A. Garner--systematically present every important idea about judicial persuasion in a fresh, entertaining way. They cover the essentials of sound legal reasoning, including how to develop the syllogism that underlies any argument.

Acknowledgments	p. ix
Foreword	p. xix
Introduction	p. xxi
General Principles of Argumentation	p. 1
Be sure that the tribunal has jurisdiction	p. 3
Know your audience	p. 5
Know your case	p. 8
Know your adversary's case	p. 10
Pay careful attention to the applicable standard of decision	p. 11
Never overstate your case. Be scrupulously accurate	p. 13
If possible, lead with your strongest argument	p. 14
If you're the first to argue, make your positive case and then preemptively refute in the middle-not at the beginning or end	p. 15
If you're arguing after your opponent, design the order of positive case and refutation to be most effective according to the nature of your opponent's argument	p. 17
Occupy the most defensible terrain	p. 19
Yield indefensible terrain-ostentatiously	p. 20
Take pains to select your best arguments. Concentrate your fire	p. 22
Communicate clearly and concisely	p. 23
Always start with a statement of the main issue before fully stating the facts	p. 25
Appeal not just to rules but to justice and common sense	p. 26
When you must rely on fairness to modify the strict application of the law, identify some jurisprudential maxim that supports you	p. 30
Understand that reason is paramount with judges and that overt appeal to their emotions is resented	p. 31
Assume a posture of respectful intellectual equality with the bench	p. 33
Restrain your emotions. And don't accuse	p. 34
Control the semantic playing field	p. 35
Close powerfully-and say explicitly what you think the court should do	p. 37
Legal Reasoning	p. 39
In General
Think syllogistically	p. 41
Statutes, Regulations, Ordinances, Contracts, and the Like
Know the rules of textual interpretation	p. 44
In cases controlled by governing legal texts, always begin with the words of the text to establish the major premise	p. 46
Be prepared to defend your interpretation by resort to legislative history	p. 48
Caselaw
Master the relative weight of precedents	p. 52
Try to find an explicit statement of your major premise in governing or persuasive cases	p. 55
Briefing	p. 57
Introduction
Appreciate the objective of a brief	p. 59
Preparatory Steps
Strengthen your command of written English	p. 61
Consult the applicable rules of court	p. 64
Set timelines for the stages of your work	p. 66
In cooperation with your opponent, prepare the Joint Appendix	p. 68
The Writing Process
Spend plenty of time simply "getting" your arguments	p. 69
Outline your brief	p. 70
Opening Brief	p. 71
Responding Brief	p. 71
Reply Brief	p. 73
Petition for Discretionary Review	p. 75
Response to a Petition for Discretionary Review	p. 79
Sit down and write. Then revise. Then revise again. Finally, revise	p. 80
Architecture and Strategy
Know how to use and arrange the parts of a brief	p. 82
Questions Presented	p. 83
Statement of Parties in Interest	p. 89
Table of Contents; Table of Authorities	p. 89
Constitutional and Statutory Authorities	p. 90
Statement of Jurisdiction	p. 91
Introduction or Preliminary Statement	p. 91
Proceedings Below	p. 92
Statement of Facts	p. 93
Summary of Argument	p. 97
Argument	p. 98
Conclusion	p. 100
Appendix	p. 101
Advise the court by letter of significant authority arising after you've filed your brief	p. 101
Learn how to use, and how to respond to, amicus briefs	p. 102
Writing Style
Value clarity above all other elements of style	p. 107
Use captioned section headings	p. 108
Use paragraphs intelligently; signpost your arguments	p. 109
To clarify abstract concepts, give examples	p. 111
Make it interesting	p. 112
Banish jargon, hackneyed expressions, and needless Latin	p. 113
Consider using contractions occasionally-or not	p. 114
Avoid acronyms. Use the parties' names	p. 120
Don't overuse italics; don't use bold type except in headings; don't use underlining at all	p. 122
Describe and cite authorities with scrupulous accuracy	p. 123
Cite authorities sparingly	p. 125
Quote authorities more sparingly still	p. 127
Swear off substantive footnotes-or not	p. 129
Consider putting citations in footnotes-or not	p. 132
Make the relevant text readily available to the court	p. 135
Don't spoil your product with poor typography	p. 136
Oral Argument	p. 137
Introduction
Appreciate the importance of oral argument, and know your objectives	p. 139
Long-Term Preparation
Prepare yourself generally as a public speaker	p. 142
Master the preferred pronunciations of English words, legal terms, and proper names	p. 144
Master the use of the pause	p. 146
Preliminary Decision: Who Will Argue?
Send up the skilled advocate most knowledgeable about the case	p. 147
Avoid splitting the argument between cocounsel	p. 148
Months and Weeks Before Argument
Prepare assiduously	p. 150
Learn the record	p. 151
Learn the cases	p. 152
Decide which parts of your brief you'll cover	p. 153
Be flexible	p. 153
Be absolutely clear on the theory of your case	p. 155
Be absolutely clear on the mandate you seek	p. 156
Organize and index the materials you may need	p. 157
Conduct moot courts	p. 158
Watch some arguments	p. 159
On the eve of argument, check your authorities	p. 160
Before You Speak
Arrive at court plenty early with everything you need	p. 161
Make a good first impression. Dress appropriately and bear yourself with dignity	p. 162
Seat only cocounsel at counsel table	p. 163
Bear in mind that even when you're not on your feet, you're onstage and working	p. 163
Approach the lectern unencumbered; adjust it to your height; stand erect and make eye contact with the court	p. 164
Substance of Argument
Greet the court and, if necessary, introduce yourself	p. 166
Have your opener down pat	p. 167
If you're the appellant, reserve rebuttal time	p. 167
Decide whether it's worth giving the facts and history of the case	p. 168
If you're the appellant, lead with your strength	p. 169
If you're the appellee, take account of what has preceded, clear the underbrush, and then go to your strength	p. 170
Avoid detailed discussion of precedents	p. 171
Focus quickly on crucial text, and tell the court where to find it	p. 172
Don't beat a dead horse. Don't let a dead horse beat you	p. 172
Stop promptly when you're out of time	p. 173
When you have time left, but nothing else useful to say, conclude effectively and gracefully	p. 173
Take account of the special considerations applicable to rebuttal argument	p. 175
Manner of Argument
Look the judges in the eye. Connect	p. 178
Be conversational but not familiar	p. 179
Use correct courtroom terminology	p. 180
Never read an argument; never deliver it from memory except the opener and perhaps the closer	p. 181
Treasure simplicity	p. 182
Don't chew your fingernails	p. 183
Present your argument as truth, not as your opinion	p. 184
Never speak over a judge	p. 184
Never ask how much time you have left	p. 185
Never (or almost never) put any other question to the court	p. 186
Be cautious about humor	p. 186
Don't use visual aids unintelligently	p. 187
Handling Questions
Welcome questions	p. 189
Listen carefully and, if necessary, ask for clarification	p. 191
Never postpone an answer	p. 192
If you don't know, say so. And never give a categorical answer you're unsure of	p. 193
Begin with a "yes" or a "no"	p. 193
Never praise a question	p. 194
Willingly answer hypotheticals	p. 194
After answering, transition back into your argument-smoothly, which means not necessarily at the point where you left it	p. 195
Recognize friendly questions	p. 196
Learn how to handle a difficult judge	p. 196
Beware invited concessions	p. 199
After the Battle
Advise the court of significant new authority	p. 201
If you're unhappy with the ruling, think about filing a motion for reconsideration	p. 201
Learn from your mistakes	p. 205
Plan on developing a reputation for excellence	p. 205
Sources for Inset Quotations	p. 207
Recommended Sources	p. 213
Index	p. 219
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