making the case


I am in DC this week attending a conference – the cherry blossoms are in bloom but alas the weather is grey.   Livening up things, however, and happily not deterred by his auto mishap of yesterday, Justice Scalia gave a very entertaining presentation with his co-author, Bryan Garner, on the art of appellate advocacy, elaborating on themes from their book, Making Your Case:  The Art of Persuading Judges.  (News flash – they are working on another book, on statutory construction.  I will be interested to see how Justice Scalia's originalist perspective is translated into the context of a book of general use for advocates.) 

Much of the book and the presentation expressed various points I've blogged on before and that others have written about  – e.g. know your audience, don't overreach, etc.  It's always useful to have these points reinforced, and these two speakers expressed them in entertaining ways.  But today Ithought I'd focus on some things they said that are either not obvious, or for which they give new tips (at least new to me.)

1.  Always have someone other than the drafter check the cites.  That way you reduce the chance of overreaching- the fresh look comes in with no preconceptions.

2. Check the clarity of your argument by stripping out all the citations of authority and seeing how it reads.  

3.  When politely disagreeing, say "with respect," not "with all due respect" – the latter makes one conjecture as to exactly how much respect is due.

4.  Make an effort when you gender neutralize your brief to make that neutrality invisible.  Both speakers acknowledged that briefs today need to be gender neutral, although Justice Scalia says that this wrecks havoc on good prose.  Both agreed that s/he  or "she or he" is no good.  It is hard sometimes to get around this problem without using awkward language.  Try harder.

5.  "Instant" – saying the "instant" brief etc. Justice Scalia puts this on his list of fancypants legalese to eliminate.  I am a big fan of avoiding legalese, but this one gives me a little pause, because sometimes in context using "this" instead can be ambiguous.  They agreed that it's ok to use Latin phrases when you aren't doing it for snob appeal but rather to save verbiage, and sometimes I would put "instant" in a similar category.  But now I will think twice.  

6.  On the old question whether oral argument makes a difference, Justice Scalia said that it doesn't when he's made his mind up before the argument, but that frequently he hasn't, and it does make a difference then.  He said this was the one unexpected aspect he confronted when becoming a judge – he didn't anticipate having  not made his mind up by oral argument so often.

7.  You always want to lead with your strongest argument, but sometimes you can't in your brief because it's not logical (you have to talk about jurisdiction before the merits, liability before damages etc.)  But at least if you are the opening arguer, there's no excuse not to lead with your best argument there.  If you are the appellee, then there's more nuance to this rule. Citing Aristotle, Justice Scalia said that if the court is focusing on the most powerful argument on the other side, then even if it's not your strongest, you may have to deal with it first so the court can then move oe to focus on what you have to say about your own strongest argument.  If you don't deal with the other side's biggie first, the court may be distracted.  I would only add that in this modern age of short attention spans and limited argument time it is doubly important to cut to the chase immediately.

8. Always lead with a preliminary statement/introduction/explanation of the issue before launching into the facts (being sensitive to the court's rules on brief contents).  

9.  The proper tone is "respectful intellectual equality," like an associate to a partner – don't lecture and don't be a toady.

10.  Elicit indignation, don't be indignant.  Judges don't like emotion or accusatory tones toward opposing counsel.  If the other side's been horrible and you have to address it, the best way is to present the facts in a particularly neutral sounding fashion.  Indeed, I would add that the more disgusting the injustice you are addressing, the more effective understatement can be. 

11.  Headings – they both advocated use of captions and sub-headings, which isn't a new point, but Garner was very precise about what he thought a good caption was – usually 2-4lines long, with the word "because" in it.

12.  What I call roadmapping, they called sign posts – always signal where you are going.  Justice Scalia focused on the role of the paragraph in doing this.  Don't just start a new paragraph when you think one's become too long – it's a signal to the reader that you are moving on to another point.  They both also said that they liked starting sentences with signalling words like but, and, however.  This last one troubles me because of the general rule against starting a sentence with however.  So once again to follow that important Hippocratic rule in appellate advocacy of doing no harm, i.e. not alienating any judges if you can avoid it, I guess the trick is to get that however as close to the front of the sentence as possible without peeving the Strunk & White fans – "If, however, …."

13.  Give examples to illuminate the abstract point.  This one is obvious – at least to me – but I think it's under done so I repeat it here. 

14.  Avoid hackneyed jargon.  They put into this category "fatally flawed" and "[decision] and its progeny."  (They used Roe v. Wade as their example decision in this phrase, at which point Garner pointed out that this was a particularly inapt decision to have progeny.)

15.  Avoid acronyms -not "BoA" for Bank of America, but "the Bank."

16.  They repeated the traditional point of not underlining, italicizing etc. I call this not screaming at the reader; Justice Scalia said that it makes a brief sound like a school girl's diary – IT was so exciting!  Justice Scalia added that the good way to emphasize is in word order – get your important word to the very end of your sentence – bam. 

There was lots more to the discussion (and their book), all of use.  I will stop here, except there was one point that I think has an inherent tension in it and presents some fundamental questions about what what we are trying to achieve.  I will save this discussion, however, for more complete treatment in another entry.  Stay tuned.