Making Your Case: The Art of Persuading Judges | 
| Authors: Antonin Scalia, Bryan A. Garner
Publisher: Thomson West
List Price: $29.95
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Rating:  34 reviews
Sales Rank: 2665
Media: Hardcover
Edition: 1
Pages: 269
Number Of Items: 1
Shipping Weight (lbs): 1
Dimensions (in): 8.2 x 5.6 x 1.2
ISBN: 0314184716
Dewey Decimal Number: 340.0711
EAN: 9780314184719
ASIN: 0314184716
Publication Date: April 28, 2008
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Product Description
In their professional lives courtroom lawyers must do these two things well: speak persuasively and write persuasively. In this noteworthy book, two of the most noted legal writers of our day Justice Antonin Scalia and Bryan A. Garner systematically present every important idea about judicial persuasion in a fresh, entertaining way. Making Your Case: The Art of Persuading Judges is a guide for novice and experienced litigators alike. It covers the essentials of sound legal reasoning, including how to develop the syllogism that underlies any argument. From there the authors explain the art of brief-writing, especially what to include and what to omit, so that you can induce the judge to focus closely on your arguments. Finally, they show what it takes to succeed in oral argument. The opinions of Justice Scalia are legendary for their sharp insights, biting wit, and memorable phrasing. The writings of Bryan A. Garner, editor in chief of Black s Law Dictionary , are respected inside and outside legal circles for their practical guidance on the art of writing and advocacy. Together the Scalia-Garner team has produced a fresh, innovative approach to a timeless topic.
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| Customer Reviews: Read 29 more reviews...
 Persuasion from a legal point of view May 1, 2008
Tom Carpenter (Marysville, OH)
83 out of 88 found this review helpful
I am not a lawyer, but I love reading about persuasion and influence. This book caught my attention out of left field, but it certainly added a lot of value to my understanding of persuasion from a logical and argumentative point of view.
Most of the books I've read on persuasion focus on the emotional appeals that move people and mention that you need to give a rational argument for the decision so the persuadee can feel good about it. This book teaches you how to make that rational argument, but it does more than that. It teaches you how to frame the argument before it is made so that it will be more persuasive when it is made. The portion focused on the development of the syllogism was particularly interesting.
Definitely a book that you will want to read whether your are in the legal arena or not - if you want to know how to influence and persuade.
Potentially a Paradigm Shifter May 2, 2008
K Vaughn (Atlanta, GA USA)
46 out of 66 found this review helpful
Lawyers please read this book. Not just for your edification; but for the benefit of the rest of us too.
Why do so many people think lawyers are jerks? Perhaps it's got something to do with the way lawyers are trained that leads some of them to believe that arrogance, rudeness and boorishness are the trifectas of success in their profession.
Apparently judges of all ilks - all the way up to Supreme Court Justices, have seen more than their fill of nasty advocate's behavior in their courtrooms. So have I.
For the past five years I've trained trial lawyers, and some of the behavior I've seen inside courtrooms has not just been appalling, it's been stupid. As a non-lawyer, I must say that the vast majority of lawyers are not deserving of the stereotype they've been tagged with. However, there's a tiny minority whose nasty words and deeds more than compensate for the polite professionalism of the majority of their peers.
Attention All Jerks: This book is for you. The most important aspect of this book may be the one you want to ignore; but pay attention to the primary theme that runs throughout it: Your spiteful, oafish and intemperate behavior in court, damages your prospects of winning. You aren't just harming your client. Your income is taking a beating too.
Although this book is packed with invaluable advice for litigators and transactional lawyers alike, there is no more important advice than in this sentence from the Introduction: "Your objective in every argument therefore, is to show yourself to be worthy of trust and affection."
Look, again at that sentence. Is there any business or profession in which that lesson would not be valuable? In fact, is there any business or personal relationship in which that lesson would not be valuable? That is why this book should be read by all advocates for any cause.
If every lawyer in this country - and the world, read this book and fully absorbed the power of that one simple lesson, the profession might begin to alter its image, which as been around since, well, at least since Dick the butcher voiced an attractive sounding idea in Henry IV, part Two, "The first thing we do, let's kill..."
Elegant, useful May 7, 2008
rbnn (Berkeley, CA United States)
46 out of 53 found this review helpful
Simply the best book on legal persuasive writing ever written.
Interesting, useful, fun, full of great anecdotes. Terrific discussion of statutory interpretation. Great references to scholarly classical treatises on rhetoric. This book is wonderful both for its analysis of oral argument and for its discussion of written forms of persuasion, like briefs. I wish I had had it earlier.
My only complaint is the same one I have with virtually all modern style manuals: they advocate a simplistic prose style, characterized by short, conversational sentences, avoiding unusual words, eschewing Latin phrases. But I personally often find prose that breaks these rules a refreshing change. I enjoy reading a word or phrase I rarely see but that is perfectly chosen. And I enjoy learning new words or phrases. This book would condemn two of the greatest legal prose stylists out there: John Marshall and Learned Hand, both of whose opinions often contained sentences that would not work so well conversationally, that were full of long, convoluted sentences and classical allusions. My sense is that in this joint work Justice Scalia, who can write rich and interesting prose, pushed back against some of the simplifying strictures of his co-author.
Furthermore, I think that often too much emphasis on simple words and sentences serves to make more complex ideas too difficult to express or to understand. Thus, the book (like most books) argues against "jargon," but jargon, once learned, is often a much clearer way of expressing something than a rephrasing.
And the Roe v. Wade anecdote is great! It explains a lot...
In any case, I am hardly qualified to criticize Justice Scalia, whose writing is far beyond my own. Anyway, this is a great book.
 SCALIA'S RULE BOOK - DO WHAT I SAY! May 27, 2008
John P. Flannery (Leesburg, VA)
24 out of 82 found this review helpful
Associate Justice Antonin Scalia, of the U.S. Supreme Court, has broken his media silence to talk on camera in order to hawk a rule book (115 rules to be precise) that he's written with Bryan Garner, his sycophantic co-author whose claim to fame is as the author of "Modern American Usage" and the "Elements of Legal Style".
The title of the book is "Making your case - the Art of Persuading Judges."
Perhaps it's too stern a standard to expect any public figure, much less a Justice of the U.S. Supreme Court, to tell us how it all really works - and trust me you won't find out reading this book. You'd get much more out of listening to Justice Scalia's interviews promoting his book.
There are, however, some interesting anomalies for the alert observer.
At the very outset, Justice Scalia advises us, of a judge's "human proclivity to be more receptive to argument from a person who is both trusted and liked" (p. xxii).
You may recall the accusation that Justice Scalia was more "receptive" to Vice President Cheney's argument before the Supreme Court, when our Vice President refused to disclose information about his energy task force.
Justice Scalia appeared to "trust" and to "like" Cheney. Justice Scalia even went duck hunting with the Vice President while the Sierra Club's appeal demanding disclosure was pending before the Supreme Court. Justice Scalia then wrote a 21-page "not-to-worry" broadside saying that many Supreme Court Justices get their jobs "precisely because they were friends of the incumbent president or senior officials." But does that resolve the Justice's "human proclivity"?
Having said relationships matter, Judge Scalia then says in this same rule book, in seeming contradiction, that "emotions" have no business in oral argument. This is jarring when it comes from one of the more passionate Justices in our lifetime. In Rule 17 (p. 31), Justice Scalia nevertheless warns against making "a blatant appeal to sympathy or other emotions" because such an "overt appeal" is "resented" by judges. Perhaps Justice Scalia's warning is against "blatant" appeals, rather than against an emotional appeal that is artfully executed. After all, experience and common sense teach us that it's a bad advocate who doesn't know how to use emotions as well as reason.
Judge Scalia purports to rely on Aristotle, among other classics, as source material, but Aristotle's Rhetoric (see Book II) expressly teaches us that "emotions" do matter. Aristotle wrote that "rhetoric exists to affect the giving of decisions" and "[t] he emotions are all those feelings that so change men as to affect their judgments..."
Aristotle directs every advocate to "to bring his hearers into a frame of mind that will dispose them to anger ..." or any other "emotion" that favors the preferred outcome.
Justice Scalia also teaches that an advocate must "master the relative weight of precedents" (Rule 26)(p. 52). But how do you master what is disregarded or unprecedented by a court? This is a legitimate controversial area of advocacy that is entirely overlooked in this rule book.
When the Supreme Court intervened, in its 5-4 decision, in 2000, making Governor George Bush the President over VP Al Gore, by stopping the recount in the Florida primary, the decision was unprecedented.
The dissenters called it an intrusion into what was and should have been resolved by state law; Associate Justice Breyer quoted Brandeis who wrote: "The most important thing we do is not doing."
When correspondent Lesley Stahl recently asked Justice Scalia on CBS's Sixty Minutes if the decision in Bush v. Gore, ending the Florida recount favoring Bush, wasn't more about politics than judicial philosophy, Justice Scalia passed up the opportunity to teach us, just as he did in his rule book, and said instead "get over it. It's so old by now."
(If court opinions invited indifference or irrelevance by their age, then why is it that Justice Scalia can't "get over" a much older Supreme Court decision, Roe v. Wade, from 1973, recognizing a woman's right of privacy?)
More critically, how does any advocate learn to argue to a court, any court, with a political agenda that disregards precedent?
Justice Scalia also encourages an undemocratic tone and his rules, if followed, would tamp down zealous advocacy.
Justice Scalia instructs deference to the Court, and that is fine as far as it goes, but he also tells advocates that they should appear as a "junior" colleague, and as one "explaining the case to a highly intelligent senior partner" (rule 18, p. 33). I beg to differ. No advocate should be considered an inferior before any court in a democracy. No advocate should need to consider himself (or herself) in any other way than respectful and competent. I believe most courts and justices agree and prefer a competent advocate to inform their discretion, and not some lackey who is too humbled before the court to be zealous for his client.
Consider Abe Fortas' appearance before the court in 1962, when he argued that Clarence Gideon had a right to have counsel appointed to represent him. The argument was collegial and collaborative. Indeed, President Johnson later nominated Mr. Fortas to become an Associate Justice, and thus a true colleague to the other Justices.
You also have to take issue when Justice Scalia discourages "indignation" in an advocate even when a client has been mistreated, and counsels against accusing opposing counsel of "chicanery" even if true, and discourages any argument that highlights the willful distortion by a lower court judge (rule 19, pp. 34-35).
Justice Scalia doesn't blunt his own zealous advocacy as a Justice. He has written opinions that referred to the other Justices' opinions variously as "sheer applesauce", "absurd", "implausible speculation", and "self-righteous." Should an advocate before the Court be more constrained than a Justice?
Perhaps it is harsh to treat this as a rule book for the experienced counsel, or to judge it by that standard, and I kept coming back to the judgment that this was a book that required more ignorance or innocence to sustain a reader's interest.
In truth, Justice Scalia's opinions are richer and more robust and instructive in advocacy by their example than anything you'll find in this rule book.
So don't buy the book. If you really want to know how to be an advocate, read your Aristotle.
 interesting but mostly useless July 23, 2008
Brian G. Ruschel
18 out of 22 found this review helpful
As a plaintiff's lawyer who also does appeal work, this book was very interesting but little is memorable after a few days. I'm glad I signed it out from the library instead of buying it. It's just a repeat of basic (naive) advocacy principles. The image is that your judge will really conscientiuosly read things and be careful to rule properly. The book is very well-edited--so you won't read much of substance that is realistic or cynical--like about judicial intellectual dishonesty. Scalia gives no insight on how to get an honest opinion from an appellate court--how to keep appeals judges from ignoring things in the record (or making up things) just so they can come up with a very good-appearing opinion that is wrong because it has result-oriented oddities that only the parties' lawyers know about. Summary judgment (and more recently dismissal for failure to state a claim) have become procedural easy-outs that have created widespread dishonesty by judges who want to get rid of cases (usually because they are infatuated with defense counsel). Often defense counsel succeed only because they loudly and assertively repeat their propaganda--and judges (or their staff) go right along (letting perception become reality). Also, de novo judicial review is in reality deferential to the trial judge (with unwillingness to reverse--finding any way possible (dishonest) to affirm).
There were some very good points--like not being lured into making concessions during oral argument. There might be one detail that prevents the judges from (honestly) ruling a certain way--so you could get a question that so temptingly and nicely tries to get you to agree with an innocuous point, etc. There is a great example of how the judges will write about such a concession in their opinion. Another good point is Scalia's belief that whatever doesn't help your case hurts it (i.e., don't fill your briefs, etc. with unhelpful things).
There could have been some mention of realities like that most judges and staff never in their lives had to prosecute a civil case (or never had a burden-of-proof in their lives) or never had to deal with defense counsel in a contentious manner (e.g., trying to get discovery through a motion to compel)--and how to work with that in the justice system (those judges and staff).
I also didn't like Justice Scalia's pompous "dissents" on some points by Bryan Garner. They stand out in hindsight as ugly parts. It appears that Bryan Garner did the heavy lifting in writing the book.
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