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Back Story: Book Review: Making Your Case: The Art of Persuading Judges

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FEBRUARY 2009
NEVADA LAWYER
BACK
STORY
BOOK
REVIEW
MAKING
YOUR CASE:
THE ART OF PERSUADING JUDGES
BY ANTONIN SCALIA AND BRYAN GARNER REVIEWED BY HEIDI STERN, ESQ.
“Buy it. Read it. Use it. Give it as a gift. That is what I think about this book.”
The skeptical among you may ask why you would want yet another book on how to practice law, how to present an argument or how to write a legal brief. That’s a fair question. There are at least three benefits this book offers that I think make it worth the money and the time. First, it is co-written by a sitting justice of the United States Supreme Court. No matter what you think of Justice Scalia’s jurisprudence, I believe we can agree that as a legal writer, he shines. Second, it contains some truly useful tips from some of the best lawyers around. (Check out pages 195-196 for a tip from Justice John Roberts regarding smooth oral arguments. Also don’t miss the authors’ own suggestion regarding preparation and use of an effective outline for oral argument on page 164.) Finally, and perhaps most importantly, it is witty and entertaining! So, for example, instead of merely sharing the advice that you should concede points that you know you can’t win, Scalia and Garner support making your concessions “ostentatiously.” Rather than simply stating that jury arguments are unlikely to sway an appellate tribunal, the book includes the following aside from Judge Alex Kozinski: “When a lawyer resorts to a jury argument on appeal, you can just see the judges sit back and give a big sigh of relief…. [We] understand that you know, and we know, and you know we know, that your case doesn’t amount to a hill of beans” (page 32). Certainly puts things in perspective, doesn’t it? And the commentary makes the advice itself memorable. Law nerds will also have fun with the authors’ spats over whether case citations should be placed in footnotes and whether contractions may properly be used in briefs. Scalia shares the following view on moving case citations to footnotes: “You should no more try to convert the court to citation free text…than you should try to convert it to colorful ties or casual-Friday attire at oral argument” (page 135). He also has strong feelings on banning contractions from legal briefs, invoking a slippery slope argument to predict that attorneys who use contractions will next “have us shed our robes, and start calling us by our first names!” (page 118.) Of course, the book is not all fun and games, and is full of serious and practical suggestions. It contains sound advice on what the focus of a brief should be if persuading a judge is your goal. Shockingly, the focus is not to crow about how great your case is, or to beat up on your opponent, but rather to “make the court’s job easier,” (page 59). And as for the eloquent turns of phrase we all like to pepper our writing with on occasion, the authors advise ditching the fancy words, and “valu[ing] clarity above all other elements of style” (page 107). In this review I only have space to share a few examples of the wisdom this book offers, but there is a lot more where that came from. Everything, from specific advice regarding preparation of an appendix on appeal, to general advice about the use of syllogisms in legal arguments, is included. And it is all wrapped up in a relatively short, thoroughly enjoyable package. Like I said, buy it. Seriously. One caveat to my recommendation of this book to any and all is that some sections of the book are geared specifically to appellate practice. Regardless of this emphasis, however, the book contains plenty of useful material for any lawyer who has a judge to persuade.
HEIDI PARRY STERN is a native of Las Vegas. She is of counsel in the appellate practice group at Lewis and Roca (formerly Beckley Singleton). Prior to practicing appellate law in Nevada, she clerked for the Honorable Johnnie Rawlinson on the Ninth Circuit Court of Appeals and practiced general commercial litigation in New York City.
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