Making Your Case : The Art of Persuading Judges

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  • Format: Hardcover
  • Copyright: 2008-04-28
  • Publisher: Thomson Reuters
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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.

Table of Contents

Acknowledgmentsp. ix
Forewordp. xix
Introductionp. xxi
General Principles of Argumentationp. 1
Be sure that the tribunal has jurisdictionp. 3
Know your audiencep. 5
Know your casep. 8
Know your adversary's casep. 10
Pay careful attention to the applicable standard of decisionp. 11
Never overstate your case. Be scrupulously accuratep. 13
If possible, lead with your strongest argumentp. 14
If you're the first to argue, make your positive case and then preemptively refute in the middle-not at the beginning or endp. 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 argumentp. 17
Occupy the most defensible terrainp. 19
Yield indefensible terrain-ostentatiouslyp. 20
Take pains to select your best arguments. Concentrate your firep. 22
Communicate clearly and conciselyp. 23
Always start with a statement of the main issue before fully stating the factsp. 25
Appeal not just to rules but to justice and common sensep. 26
When you must rely on fairness to modify the strict application of the law, identify some jurisprudential maxim that supports youp. 30
Understand that reason is paramount with judges and that overt appeal to their emotions is resentedp. 31
Assume a posture of respectful intellectual equality with the benchp. 33
Restrain your emotions. And don't accusep. 34
Control the semantic playing fieldp. 35
Close powerfully-and say explicitly what you think the court should dop. 37
Legal Reasoningp. 39
In General
Think syllogisticallyp. 41
Statutes, Regulations, Ordinances, Contracts, and the Like
Know the rules of textual interpretationp. 44
In cases controlled by governing legal texts, always begin with the words of the text to establish the major premisep. 46
Be prepared to defend your interpretation by resort to legislative historyp. 48
Master the relative weight of precedentsp. 52
Try to find an explicit statement of your major premise in governing or persuasive casesp. 55
Briefingp. 57
Appreciate the objective of a briefp. 59
Preparatory Steps
Strengthen your command of written Englishp. 61
Consult the applicable rules of courtp. 64
Set timelines for the stages of your workp. 66
In cooperation with your opponent, prepare the Joint Appendixp. 68
The Writing Process
Spend plenty of time simply "getting" your argumentsp. 69
Outline your briefp. 70
Opening Briefp. 71
Responding Briefp. 71
Reply Briefp. 73
Petition for Discretionary Reviewp. 75
Response to a Petition for Discretionary Reviewp. 79
Sit down and write. Then revise. Then revise again. Finally, revisep. 80
Architecture and Strategy
Know how to use and arrange the parts of a briefp. 82
Questions Presentedp. 83
Statement of Parties in Interestp. 89
Table of Contents; Table of Authoritiesp. 89
Constitutional and Statutory Authoritiesp. 90
Statement of Jurisdictionp. 91
Introduction or Preliminary Statementp. 91
Proceedings Belowp. 92
Statement of Factsp. 93
Summary of Argumentp. 97
Argumentp. 98
Conclusionp. 100
Appendixp. 101
Advise the court by letter of significant authority arising after you've filed your briefp. 101
Learn how to use, and how to respond to, amicus briefsp. 102
Writing Style
Value clarity above all other elements of stylep. 107
Use captioned section headingsp. 108
Use paragraphs intelligently; signpost your argumentsp. 109
To clarify abstract concepts, give examplesp. 111
Make it interestingp. 112
Banish jargon, hackneyed expressions, and needless Latinp. 113
Consider using contractions occasionally-or notp. 114
Avoid acronyms. Use the parties' namesp. 120
Don't overuse italics; don't use bold type except in headings; don't use underlining at allp. 122
Describe and cite authorities with scrupulous accuracyp. 123
Cite authorities sparinglyp. 125
Quote authorities more sparingly stillp. 127
Swear off substantive footnotes-or notp. 129
Consider putting citations in footnotes-or notp. 132
Make the relevant text readily available to the courtp. 135
Don't spoil your product with poor typographyp. 136
Oral Argumentp. 137
Appreciate the importance of oral argument, and know your objectivesp. 139
Long-Term Preparation
Prepare yourself generally as a public speakerp. 142
Master the preferred pronunciations of English words, legal terms, and proper namesp. 144
Master the use of the pausep. 146
Preliminary Decision: Who Will Argue?
Send up the skilled advocate most knowledgeable about the casep. 147
Avoid splitting the argument between cocounselp. 148
Months and Weeks Before Argument
Prepare assiduouslyp. 150
Learn the recordp. 151
Learn the casesp. 152
Decide which parts of your brief you'll coverp. 153
Be flexiblep. 153
Be absolutely clear on the theory of your casep. 155
Be absolutely clear on the mandate you seekp. 156
Organize and index the materials you may needp. 157
Conduct moot courtsp. 158
Watch some argumentsp. 159
On the eve of argument, check your authoritiesp. 160
Before You Speak
Arrive at court plenty early with everything you needp. 161
Make a good first impression. Dress appropriately and bear yourself with dignityp. 162
Seat only cocounsel at counsel tablep. 163
Bear in mind that even when you're not on your feet, you're onstage and workingp. 163
Approach the lectern unencumbered; adjust it to your height; stand erect and make eye contact with the courtp. 164
Substance of Argument
Greet the court and, if necessary, introduce yourselfp. 166
Have your opener down patp. 167
If you're the appellant, reserve rebuttal timep. 167
Decide whether it's worth giving the facts and history of the casep. 168
If you're the appellant, lead with your strengthp. 169
If you're the appellee, take account of what has preceded, clear the underbrush, and then go to your strengthp. 170
Avoid detailed discussion of precedentsp. 171
Focus quickly on crucial text, and tell the court where to find itp. 172
Don't beat a dead horse. Don't let a dead horse beat youp. 172
Stop promptly when you're out of timep. 173
When you have time left, but nothing else useful to say, conclude effectively and gracefullyp. 173
Take account of the special considerations applicable to rebuttal argumentp. 175
Manner of Argument
Look the judges in the eye. Connectp. 178
Be conversational but not familiarp. 179
Use correct courtroom terminologyp. 180
Never read an argument; never deliver it from memory except the opener and perhaps the closerp. 181
Treasure simplicityp. 182
Don't chew your fingernailsp. 183
Present your argument as truth, not as your opinionp. 184
Never speak over a judgep. 184
Never ask how much time you have leftp. 185
Never (or almost never) put any other question to the courtp. 186
Be cautious about humorp. 186
Don't use visual aids unintelligentlyp. 187
Handling Questions
Welcome questionsp. 189
Listen carefully and, if necessary, ask for clarificationp. 191
Never postpone an answerp. 192
If you don't know, say so. And never give a categorical answer you're unsure ofp. 193
Begin with a "yes" or a "no"p. 193
Never praise a questionp. 194
Willingly answer hypotheticalsp. 194
After answering, transition back into your argument-smoothly, which means not necessarily at the point where you left itp. 195
Recognize friendly questionsp. 196
Learn how to handle a difficult judgep. 196
Beware invited concessionsp. 199
After the Battle
Advise the court of significant new authorityp. 201
If you're unhappy with the ruling, think about filing a motion for reconsiderationp. 201
Learn from your mistakesp. 205
Plan on developing a reputation for excellencep. 205
Sources for Inset Quotationsp. 207
Recommended Sourcesp. 213
Indexp. 219
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