Saturday, April 9, 2016

Making Your Case: the art of persuading judges

In 2008 the late Antonin Scalia (then an Associate Justice of the U.S. Supreme Court) and Bryan A. Garner (editor-in-chief of Black’s Law Dictionary) put out a book titled Making Your Case: the art of persuading judges. It’s a detailed treatment of a specialized form of persuasive speaking that I found quite fascinating. 

That book is divided into four main topics:

General Principles of Argumentation (sections 1 to 21)
Legal Reasoning (sections 22 to 27)
Briefing (sections 28 to 54)
Oral Argument (sections 55 to 115)

Each topic is divided into sub-topics, and finally into pithy, brief sections. The longest sub-topic, on Oral Argument, contains

introduction  (section 55)
long term preparation (sections 56 to 58)
preliminary decision: who will argue (sections 59 and 60)
months and weeks before argument (sections 61 to 71)
before you speak (sections 72 to 76)
substance of argument (sections 77 to 88)
manner of argument (sections 89 to 100)
handling questions (sections 101 to 111)
after the battle (sections 112 to 115)

Under Manner of Argument there are the following sections:

 89. Look the judges in the eye. Connect.
 90. Be conversational but not familiar.
 91. Use correct courtroom terminology.
 92. Never read an argument; never deliver it from memory except the opener and perhaps the closer.
 93. Treasure simplicity.
 94. Don’t chew your fingernails.
 95. Present your argument as truth, not your opinion.
 96. Never speak over a judge.
 97. Never ask how much time you have left.
 98. Never (or almost never) put any other question to the court.
 99. Be cautious about humor.
100. Don’t use visual aids unintelligently.

Section 93 on page 182 says to Treasure simplicity:

“Express your ideas in a straightforward fashion, not circuitously - and in plain words. When you describe events, treat them chronologically.

Avoid pretentious expressions. You’re trying to get judges to understand a case, not to impress them with your erudition. Your job is to make a complex case simple, not to make a simple case sound complex. This end is best achieved by clear thoughts simply expressed.

Part of simplicity is brevity. Get to the point. Don’t meander in leading up to it or embellish it once made. Every fact, every observation, every argument that does not positively strengthen your case positively weakens it by distracting attention.”

Section 42 on pages 111 and 112 says To clarify abstract concepts, give examples:

“Legal briefs are necessarily filled with abstract concepts that are difficult to explain. Nothing clarifies their meaning as well as examples. One can describe the interpretive canon noscitur a sociis as the concept that a word is given meaning by the words with which it is associated. But the reader probably won’t really grasp what you’re talking about unless you give an example similar to the one we gave earlier: ‘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.”

Here in Idaho there is an excellent recent illustration of giving specific examples. Governor Otter just vetoed the Use of the Bible in Public Schools Bill, Senate Bill 1342. The bill’s sponsor, Sen. Sheryl Nuxoll, R-Cottonwood, had argued the Bible is not a sect or a denomination, since it’s used by everyone. Nuxoll told a Senate committee she considers the Bible to be universal.

A brief video of Lawrence Wasden, the Attorney General, gives specific examples of why various versions of the Bible (such as the King James version from the Church of England or Anglicans) are books of a denominational character, and thus clearly violate the Idaho state constitution.   

The image of a judge and a cowboy came from a 1902 Puck magazine at the Library of Congress.

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