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Making Your Case: The Art of Persuading Judges (2008)

by Antonin Scalia, Bryan A. Garner

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278474,704 (4.07)1
In their professional lives, courtroom lawyers must do these two things well: speak persuasively and write persuasively. In this noteworthy book, two noted legal writers systematically present every important idea about judicial persuasion in a fresh, entertaining way. The book 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.… (more)
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What is amazing to me is that when the 1) foremost legal writing authority in the US, and 2) a supreme court justice write a book about how to write briefs and prepare for oral arguments, most lawyers incorrectly believe that they are doing even a small portion of the work it takes to meet this standard of excellence. I've recently read briefs and court submittals from $400+/hour attorneys that clearly had not been given a cursory review by a proofreader (in all likelihood, the documents probably weren't even read by the lawyer that submitted them and billed a ton of mula - one of them was probably written by a 100-hour per week associate-slave and the other was clearly cut-pasted from previous documents).

Had they read their own documents, they would have found the most basic mistakes - misidentifying the parties, pasting in information from previous cases and transactions unrelated to the current transaction. If you want to be a good lawyer, read this book, attend Bryan Garner seminars and do ALL that he recommends along with the recommendations of the supreme court justices and other judges he writes with. If you want to be a typical lawyer, then bill lots of hours, don't do the things recommended here - as most don't anyway - and hope your clients never ask me to review your work.

Unfortunately, the practice of law is no longer a venue for excellence and logical problem-solving to support clients. It's a system of billable hours with smoke and mirrors to confuse and confound laypeople who don't understand the legalese. If you are hiring a lawyer, read this book (it's pretty short) and see if your lawyer does any of the items recommended. If not, then you still might do ok if the law is on your side, but it won't be because your lawyer is any good. ( )
  mdubois | Jan 3, 2015 |
I have no respect for Scalia as a human being or judge; while obviously bright, he strikes me as lacking essential empathy and humanity. But Scalia has probably seen and heard and read it all when it comes to legal arguments, so he is a good source for what works. And since it is probably virtually impossible to convince Scalia of anything that contradicts his pre-formed world-view, he may be an even better source for what might work on stubborn, uncaring and intractable dogmatists than most other judges out there.

I have tremendous respect for Garner, despite his choice of co-authors. Garner's knowledge of legal writing is top-notch. While this book is very much geared to lawyers and how they can improve their legal writing, it contains nuggets that would be useful for anyone who wants to convince someone else of their position in writing. Highly recommended. ( )
  tnilsson | Dec 5, 2013 |
KF8870 .S235 2008 (LEG)
  Farella | Apr 12, 2011 |
A good collection of over 100 tips to improve brief writing and oral advocacy. None were new or earth-shattering or slap-your-head brilliant, but mostly basic advice that preaches respect for the court and excellence from the attorney.

My one complaint is that there were very few *specific* examples for each point raised. Of course, some would have been impossible (#35: Revise your brief). But when the examples did appear, they were very helpful in explaining the "rule" in more detail.

Perhaps the most interesting points in the book were when the authors disagreed (over the use of contractions, the use of non-sexist language, the use of substantive footnotes, and the use of citations in footnotes). The back-and-forth arguments were compelling -- it might have been an even better book if the authors had found more to disagree about!

[This was a complimentary copy sent by the publisher.] ( )
2 vote legallypuzzled | Sep 3, 2008 |
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Author nameRoleType of authorWork?Status
Antonin Scaliaprimary authorall editionscalculated
Garner, Bryan A.main authorall editionsconfirmed
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Epigraph
"Experience is undoubtedly a great teacher, yet it may be counterproductive if what has been cultivated and refined are bad habits. The point is that excellence is the product of the diligent study and application of sound principles, not simply the accumulation of time logged in . . . courts." T.W. Wakeling (1979). Even so: "No rules in the handbooks are capable in themselves of making brilliant performances out of thos who intend to dispense with practice and exercise." Dionysius of Halicarnassus (ca. 30 B.C.)

Dedication
To our parents: S. Eugene Scalia (1903-1986), Catherine L. Scalia (1905-1985), Gary Thomas Garner (b. 1930), Mariellen Griffin Garner (1931-1994).
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In their professional lives, courtroom lawyers must do these two things well: speak persuasively and write persuasively. In this noteworthy book, two noted legal writers systematically present every important idea about judicial persuasion in a fresh, entertaining way. The book 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.

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