The Art of Judicial Persuasion
Need tips on how to argue your case successfully? Read “Making Your Case: The Art of Persuading Judges,” a book co-authored by Bryan A. Garner and Justice Scalia (Associate Justice of the Supreme Court of the United States). In a recent presentation at the University of San Francisco, School of Law, Justice Scalia highlights some of his tips on legal writing and oral advocacy skills, as follows:
- Know your audience. “Find out everything you can about the judge…”
- Learn the case inside and outside the record. Write down a thousand questions about the case.
- Lead with your best argument. Contrary to the great philosopher Aristotle, who advised starting with your second-strongest argument and ending with the strongest, a different approach is necessary for legal brief writing because a judge might not read to the end.
- Be willing to concede points that aren’t essential to your case. Identify those points ahead of time so you can answer any hypothetical question posed during oral argument.
- Identify your best points and stick to them. “Lawyers don’t win on those buckshot arguments.
- Terminology matters. Don’t use acronyms and give some thought to what names you use. American Airlines lawyers shouldn’t refer to their company as “double A” or “the carrier” when they could call themselves “American.” “Let the other side be anti-American.” Garner says.
- Practice improves public speaking and reading good writers improves writing.
- Treasure simplicity. “Don’t make a simple case complex. Make a complex case simple. Be Joe DiMaggio.”