For The Defense, December 2011 - DRI Today

Scalia and Garner: Making Your Case—
The Art of Persuading Judges
Bryan A. Garner (left) and
Justice Antonin Scalia
The 2011 Annual Meeting blockbuster
line up of speakers kicked off on
Thursday morning with United States
Supreme Court Justice Antonin Scalia
and award- winning author and leading
legal editor Bryan A. Garner, who joined
forces to write a book to address the ageold
question: How do effective advocates
persuade courts to decide cases in
favor of their clients? Teaching from several
sections of their book, Making Your
Case: The Art of Persuading Judges, the
two offered advice, with a healthy dose of
humor, to a full ballroom on how lawyers
can achieve best results in brief writing
and oral argument, along with warnings
on practices to avoid.
For example, recalling their book’s
section on never overstating your case,
Mr. Garner said that the advocate should
ask him- or herself if he or she can understate
the case and still have it work. If, in
your argument, you are “having to rely
on words like ‘clearly’ and ‘obviously’
and that sort of thing to carry your way,
it’s not a good argument,” he said. On the
book’s section on why you should lead
with your strongest point, Mr. Garner
10 ■ For The Defense ■ December 2011
japed that it’s “because judges are most
awake at the beginning of the argument.”
He also said “first impressions last,” that
“if you begin with a strong argument, the
judge will think you have a strong case,”
and that “in some contexts, such as oral
argument, you may never get off your
first point.”
Justice Scalia then addressed the question
of whether you should still lead with
your best argument if you are second to
argue, or if it is better to first refute the
arguments that your opponent has just
made. On that point, he said that he and
Mr. Garner agreed with Aristotle’s philosophy
that a previous argument must
first be refuted, especially if it was well
received. “You have to make space,” said
Justice Scalia, drawing on his experience
from the bench, “you have to knock down
this powerful argument…, then I can listen
to you.”
Scalia and Garner also talked about
the importance of making sure that
the arguments upon which you rely are
responsible and defensible, while at the
same time having the sense to yield the
indefensible points in your case. “Yield
ostentatiously!” Justice Scalia recommended,
“Show the court how reasonable
you are.”
In presenting any brief or oral argument,
Justice Scalia underscored how
important it is to “get the issue out front.”
He remarked that he is surprised at the
number of briefs he reads (not from his
Court) that start with a recitation of the
facts, which only leaves him wondering
what he is supposed to be looking for—
what’s important? He also underscored
the importance of knowing your audience.
“You should scope out the judges
you’re appearing for profoundly before
you write your brief or before you stand
up,” Justice Scalia said.
Mr. Garner spoke about the nuts and
bolts of composing briefs, touching on
the importance of effective point headings.
He also addressed some points
of oral argument strategy, reminding
attendees that during oral argument,
questions go one way. You should never
ask a judge what he or she would have
done in certain circumstances or even
if you’ve answered a judge’s question to
his or her satisfaction. On the subject of
questions, Justice Scalia said that good
advocates should welcome not only questions,
but also hypotheticals from the
bench. He admonished attendees to avoid
a practice that vexes him, which is when
a lawyer responds to a hypothetical presented
by the court by saying that it’s “not
this case.” He knows it’s not this case, it’s
a hypothetical! As an appellate judge, his
main concern is not necessarily with the
result of the case before him—he is in
charge of creating a rule. “If it produces
a happy result in this case, that’s wonderful,”
said Justice Scalia, “but my main
concern is [whether] this rule will produce
justice in the vast majority of cases
to which it will be applied in the future.”
Justice Scalia and Mr. Garner were
kind enough to remain long after the
conclusion of their presentation for a
book signing, of which several hundred
Annual Meeting attendees and their
guests were pleased to take advantage.