Six Legal Writing Tips from Antonin Scalia and Bryan Garner That Will Improve Your Brief Writing


Scalia and Garner

            Antonin Scalia and Bryan Garner’s short little handbook, Making Your Case, on persuading judges is a great asset for any lawyer.  The first half focuses on general rules of argument and brief writing, while the second is centered around oral argument. I found a ton of practical tips in here and it looks like a dipped this book in highlighter because of all the salient points I wanted to outline later—which you can obtain here (21 pages). Here are six tips on legal writing and argumentation from the first half that I found particularly useful.

Clearing the Underbrush and Making Space .

“One must . . . make space in the listener for the speech to come; and this will be done by demolishing the opponent’s case. Aristotle

This tip applies when you are the party opposing a motion, such as one for summary judgment or to compel discovery, and your opponent makes a point in the opening brief “that would entirely bypass your principal point—for example, a persuasive claim of waiver or lack of jurisdiction.” In other words, they assert an argument that would make your forgoing points moot.

To most effectively deal with this scenario, Garner and Scalia instruct that you quickly demolish this point at the outset—or clear the underbrush as they term it—before you move into your argument. This clearing process helps create space for your persuasive points, which will allow the court to be more receptive to your principal argument. They do offer a cautionary: this advice only applies to refutation of separate points that make your arguments academic—not to your opponent’s disputation of your affirmative points themselves.

The authors note that there are opponents to this view. These disagreeing experts say you should arrange your points just as the appellant did no matter what. Scalia and Garner advise against this as they have “too often seen a judge flip back to the end of the [responding] brief, looking to see whether there is any refutation of the appellant’s point that, if true—as it seemed to be—would make the [responding party’s] first point utterly academic.” So, save the judge some effort, and state that refutation at the outset, thus creating a clear space for the presentation of your points with haste.

When You Are The Responding Party, Follow Your Own Order of Argument—Usually

This tip addresses another division in academic argument regarding responsive briefs—whether you should follow the basic order of arguments used in the [opening] brief rather than developing one’s own. While the arguments might better engage the judge and be easier to follow when styled in the same order, there are two reasons not to do this: (1) there is a good possibility that the organization of the opening brief will be a mess; and (2) it is desirable to impose your own perspective on things, arranging your stronger points first and “stamping your own order upon the case.” But note, when there is not much difference between your adversary’s arrangement and your own structure, use the same order as this will improve clarity.

Less Is More: Choose Only Your Strongest Arguments

For the careful writer, the hardest thing after starting is stopping. Antonin Scalia and Bryan A. Garner

Utilizing the kitchen sink approach in asserting arguments is detrimental to your case. By arguing every point under the sun, you make the judge less inclined to believe your stronger ones by burdening him with weaker ones. In other words, you are telling the judge, “I threw in the kitchen sink because I felt that one argument could not possibly carry the weight. But, in order to prevail on a motion, all you need is one argument, and if you have that argument, which a careful investigation and analyses will likely reveal, don’t lessen its persuasive force by crowding the brief with ancillary, weak assertions.

Understand The Hierarchy Of Persuasive Authority And The Contexts That Persuade

Scalia and Garner instruct that the most persuasive authority is the case where the party situated like your client lost in the trial court but won in reversal. When you cite a case with this context, you make this implicit argument to the court: “Your Honor, if you do what my adversary is asking here, you will be reversed on appeal—just as in this other case I cite.” The next most persuasive authority is when the party situated like your client prevailed in the trial court, and the appellate court affirmed. Here, the implicit argument is: “Your Honor, if you do what I am asking here, you will be affirmed on appeal—just as in this other case I cite.” There is much persuasive force in making these implicit arguments because, as two prominent advocates point out, “[t]rial judges hate being reversed more than just about anything in the world.” David J.F. Gross & Charles F. Webber, The Power Trial Method. Be on the lookout for these persuasive situations when seeking out citations and make the consequences known, implicitly, to the judge.

Begin With The End In Mind—Themes and Theories

It is important that you, the advocate, clearly understand the overall objective of the brief and the destination you wish to reach. Scalia and Garner advise that the best way to do this is to bring out your themes and case theory early, from the question presented to the conclusion.

Briefly, a theory of a case is a logical statement of the case-as-a-whole selected by the lawyer, in light of opposing counsel’s anticipated theory. The theory should be able to be presented in the form of a series of syllogisms that establish that the desired conclusion is necessarily true, given the controlling legal principles and the presented evidence and assuming the truth of the inferences laid out.

A theme is the explanation of the facts which shows the moral force is on your side—e.g., “This is a story about a heartless insurance company that chose to prolong the agony of grieving parents by refusing to pay the amount due under the policy for which they had paid until they proved the obvious—that their son is dead.” Sargent v. Massachusetts Accident Company, 307 Mass. 246 (1940). So, a theory focuses on the logical while a theme focuses on the emotional and the moral.

Revolving your brief around these preliminary, foundational concepts help guide the court to the outcome you desire. Their urging is reminiscent of Steve Covey, a best-selling author renowned for his book The Seven Habits of Highly Successful People, and his principal “begin with the end in mind.” While he utilized this principle as a general tool to plan your life, it is useful here: To begin with the end in mind means to begin with a clear understanding of your destination. It means to know where you’re headed so that you better understand where you are now and so that the steps you take are always in the right direction. Or stated metaphorically, “If your ladder is not leaning against the right wall, every step you take gets your to the wrong place faster.” This applies equally to briefing and appreciating the objective of the brief.

You should have your case theory and theme—and the end they serve—in mind before you start briefing. This will help you avoid climbing the wrong ladder and help the judge see the motion in the larger context of the lawsuit; or as Scalia and Garner put it, “fixing in the judge’s mind ideas that may help you later on.” And after all, isn’t a lawyer just a guide who can point out landmarks and help others understand the terrain? Utilize case theories and themes to fulfill this guiding function

Use A Question Presented In Your Brief

In every sense of the word—and in all seriousness—it can be said that the most important paragraph in a brief is the first one, in which appears counsel’s formulation of the issues presented for decision. Frank E. Cooper

Scalia and Garner say that unless the rules of your court forbid stating a question presented, and they know none that do, you should do so religiously. They explain that many lawyers fail to appreciate that the result of a case rests on what the court understands the question presented to be. You want to state these question presented in a way that supports your theory of the case and leads to the outcome you want. And to do this you must find the premise that pulls the court towards your desired rule and then explicitly state that premise in your issue. But, they caution, it’s necessary you state the issue fairly. Don’t overreach. And don’t “color the issue with loaded adjectives and argumentative consequences.” The goal is to have the court decide to answer the question you pose, because, as a consequence, “it will probably reach the conclusion you urge.”

The most useful form of an issue statement is the appropriately named “deep issue.” This statement contains within it the syllogism that produces your desired conclusion. You should break up this deep issue into separate sentences totaling no more than 75 words. The first sentences follow a chronological order, providing a mini-narrative of your case. From this mini-story comes the question to be decided.

Moreover, the effect of highlighting the issues and conclusions in your own briefing process is threefold: (1) it tests the validity of those conclusions more thoroughly; (2) it ensures that you carry through with them when you get to the middle; and (3) it eliminates slag that your research has produced but that doesn’t help the analysis. Explore using a question presented at the outset of your brief to stack the deck.

Find my complete outline here!

You can pick up Scalia and Garner’s book here on Amazon.


Five Lessons From Humanistic Psychology That Will Help Facilitate Personal Growth


humanistic psychology

I’ve been a fan of humanistic psychology for a little over a year now, and this was further solidified after my recent read of Abraham Maslow’s book, “Toward a Psychology of Being.” Humanistic Psychology developed in opposition to Freudian psychoanalysis, and was designed to represent a less sexualized, negative view of human nature.  It emphasizes man’s inherent goodness and his natural drive to reach his utmost potential and live up to his own inner essence-i.e., to self-actualize.

However, the more fundamental theory of humanism has been around for much longer than humanistic psychology, which only began to take a foot hold in the 20th century. The philosophy, in some form or another, was recognized as early as in ancient Greece, when Plato stressed the importance of man’s need to fulfill his nature, and realize his capacities and power as a human being. Humanistic traditions were also recognized during the Renaissance in opposition to the prevailing Christian religiosity of the Middle Ages.

Humanism stood in stark contrast to Christianity at the time, which sounded in themes of the worthlessness of man and his insignificance in relation to the supernatural world. It, instead, celebrated the works of human genius and identified the power of human reason to know truths and achieve capacity. The humanistic psychology of the 20th century aligns with these long-standing values and provides just as much valuable wisdom for individuals today as it did hundreds of years ago. Here are five lessons from two of its largest 20th century proponents: Abraham Maslow and Carl Rogers:

  1. Every act against our own inner nature has a consequence to our psyche.

In each moment, we can choose to act in a way that is self-preserving, beneficial, or detrimental and negative. The totality of all these decisions has an irreparable effect, be it positive or negative, on our psychological well-being. Stated differently, there is no stagnation in life, you are either moving towards or away self-actualization with every decision. Choose wisely.

  1. Man must be True to his inner nature.

“[T]o will to be that self which one truly is, is indeed, the opposite of despair, and this choice is the deepest responsibility of man.” Carl Rogers

This principle recognizes the importance in making decisions that are in accord with most truly enjoy. As we grow older, society and other people begin impose their values upon us. This leads to enculturation, the acquisition of characteristics and norms of a culture, and to us forgetting the little things that truly make us happy—often realized during our early childhood. Maslow calls these forgotten gems our inner subjective delights. And it is the ability to recapture these delights, resist enculturation, and act in a way that is truly satisfying to our inner nature, that allows for self-actualization and fulfillment. When faced with a decision, think back to how your inner child might act, unconstrained by social norms, and act with spontaneity in order to decide which action would truly make you happy.

  1. A focus on ultimate aloneness and the self-responsibility that comes with that realization.

With humanistic psychology’s intense focus on self-actualization and maximizing your potential comes a simple realization: you, and you alone, are in charge of your life. We, as humans, must be comfortable with this fact and embrace this ultimate aloneness. The concepts of decision, of responsibility, of choice, of self-creation, all depend on us. But with this realization, we can reach our full potential because we become more self-directed and less reliant on external sources and the environment.

We begin to embrace the fact that satisfaction comes from within, and that our inner capacities constitute the wellspring of joy. Along with internal fulfillment comes a powerful, creative force within, allowing us to readily take advantage of peak experiences—commonly called flow. Flow is a high-level of functioning that is immensely gratifying and productive, and embracing our autonomy and aloneness is the first step in accessing this experience. With this aloneness we also can reach our inner depths, which is actually frightening, as it reveals existential problems like death and the meaning of life. But these depths, as scary as they may be, are also the source of all man’s joys, his ability to play, to love, to laugh, and most importantly, to be creative.

  1. The Intrinsic and Rewarding Nature of Growth and a Shift Away From Valuing Outcomes

This principle is reminiscent of the ancient concept that we are not entitled to the fruits of our action, only the action itself. But it goes a step further: we, as self-actualizing humans, have the inherent capability to enjoy the action as a growth-experience. When we act in accord with our inner nature and engage in our subjective delights, action transforms into growth. Thus, the steady increase of knowledge on a topic, a profession, a person is satisfying even though no end-goal is reach. And eventually, every activity that is designed to bring us further to an end-goal turns into an end goal in itself. This is not a stoic prescription to do the work because work is what humans do, it is a prescription to enjoy the work because it is characteristic of self-actualizing and growth.

  1. The Value of Acquiring Knowledge to Simultaneously Reduce Fear and Then Facilitate Growth

Maslow explains children frequently reduce their own fear and anxiety by gaining a better understanding of whatever is feared. The ferocious-looking, loud dog sheds its aura of dangerousness when it gently licks your hand; the homeless individual on the corner, begging for money, unkempt and dirty, is no longer frightening when you speak with him and understand his tragedy and suffering. We can engage in the same process as adults. Knowledge about an intimidating topic or situation at school or work helps reduce anxiety in the individual; this, in turn, leaves the person emboldened and courageous to explore new areas that were inaccessible because of fear. What follows? Growth. Thus, don’t shy away from a situation because it is intimidating and difficult, acquire information about it, seek advice, and then act.

 

 

 

 


Thinking Like a Lawyer: A Framework That Weaves Together Theory and Practical Advice


Thinking Like a Lawyer
Thinking Like a Lawyer

Click here for my comprehensive personalized, 26 page, Thinking Like a Lawyer Outline

“If man goes into law it pays to be a master of it, and to be a master of it means to look straight through all the dramatic incidents and to discern the true basis of prophecy” Oliver Wendell Holmes

University of Virginia professor Frederick Schauer, in his book “Thinking Like a Lawyer,” provides a framework useful in fulfilling Justice Holme’s prescription. Within this framework is professor Schauer’s careful identification and distillation of complex theoretical issues underlying the Anglo-American judicial system. The reader leaves this book with enhanced legal reasoning and more cogent thinking, allowing you to look straight through all the “dramatic incidents and to discern the true basis of prophecy,” as Justice Holme’s advised.

Nonetheless, this book is not something to breeze through lightly before bed or on a lazy afternoon. While it is not a strictly legal text or “law book” with rules and standards listed in a formulaic and mundane fashion, it requires careful attention and thinking. Schauer dives right into the core of some confusing, yet interesting, legal issues and this book requires patience.

If the reader chooses to embark on Schauer’s theoretical discussion within Thinking Like a Lawyer, great rewards wait for them at the end. Some of my personal favorites include a detailed and unique perspective on authority and how that authority should be viewed, as I discussed in this older blog post.  Equally valuable was Schauer’s parsing of using and citing precedent and using and citing analogy. He states: “Law’s use of precedent differs substantially form law’s use of analogy, for in the latter a previous decision is selected in order to support an argument now, while in the former a previous decision imposes itself to preclude an otherwise preferred outcome.”

Having a clear understanding of this distinction, and many others identified within the book, aids in the legal reasoning process. This “clearing-up” function of concepts is a consistent theme throughout the book and instills a more clear-headed perspective for the lawyer.

Another interesting discussion, found within the analogy chapter, includes tips on how one is to determine similarity in order to successfully analogize a case—i.e., you must focus on the similarities with legal relevance as opposed to similarities that are relevant for other purposes. Legal relevance might be those facts that help further the underlying policy the rule of law is supposed to further. This type of model gives the practitioner some helpful theory behind the reasoning process so that legal briefing, for example, can be completed in a more methodical fashion.

Another useful discussion for the theoretically disposed is the one on the Common Law. Professor Schauer gives a useful history of the Common Law, mentioning its basic precepts and goals.  Such as, “It is the merit of the common law, Oliver Wendell Holmes observed, ‘that it decides the case first and determines the principle afterwards’ ”; and how the common law “works itself pure,” which captures “the belief that the common law, in being fluid and always improvable at the hands of common-law judges, gradually approaches a perfection in which the rules almost never generate suboptimal outcomes.”

One of the more practical discussions is the one on Statutory Interpretation, which outlines the fundamental goals of interpretation, the primary methods lawyers successfully interpret statutes to favor their client, the common pitfalls in statutory interpretation, the major debates surrounding interpretation, and various canons of statutory construction—e.g., In pari materials (Provisions in different statutes, or different parts of the same statute should be interpreted as a whole to produce a coherent and internally consistent statutory scheme). Schauer also separates apart the different types of issues interpreters face when the words of the text are insufficient, such as when the text provides no answer versus when the text provides a bad answer, and how a legal reasoner can go about solving this problem.

The remaining chapters continue to provide a well-selected mix of topics that provide practical as well as theoretical value to the lawyer, law student, or practitioner—the difference between Law and Fact (surprise, the distinction is more threadbare than you might think), the difference between Rules and Standards, and the role of the Burden of Proof in American Law. Schauer is really masterful at identifying subtle nuances in the law, such as the impact of narrow versus broad decisions and how this impacts the development of law in the future decision-making, and the effect a rule has on judicial discretion compared to a standard. His explanations of these nuances seem common sensical and obvious, but they are distinctions that go unconsidered for most in everyday legal practice.

Moreover, this book is unequivocally a gold-mine for developing your mental representations, a topic I’ve written about in the past. When you expose yourself to new information, you conjure up a new mental structure that houses that information and similar information. The more you study a topic, the more detailed and comprehensive these mental representations become, thus allowing you to assimilate new information more easily. Exposing yourself to the wonderful survey that professor Schauer provides sets into motion various mental structures that are engrained in everyday legal practice—burdens of proof, citation of authorities, and dealing with facts and law. While many of the discussion in the book are admittedly highly theoretical, the mere exposure will help you have a more dynamic perspective in your practice.

The only down-side of Schauer’s work is that it leaves a young lawyer grasping for actionable tips to implement immediately in practice.  There were almost none that I was able to pick up, as the book focuses on abstractions that the reader must turn into something actionable–perhaps this isn’t such a bad thing. Luckily, there are plenty of books out there that to focus on the actionable, so you can always turn there.

Alas, Thinking Like a Lawyer belongs on your bookshelf of law books and can be referred to when faced with a difficult problem, whereby a new perspective might be helpful. It is also interesting in its own right, providing many interesting controversies and disputes in legal theory—e.g., the correctness of the legal realist movement—and citing a multitude of law review articles on topics you may want to take a further look. But, at bottom, it provides various frameworks and insight into legal concepts that will help you become a master of law, as Holmes put it, as the true prophecy and purpose of the law is made more apparent through Schauer’s discussion. One of the most cited legal scholars in the country does not fail in this attempt to provide an introduction into the distinct reasoning process lawyers engage in, and I highly recommend it to pre-law students, law students, and lawyers alike.

For a comprehensive outline on the book, click here. It includes more detailed discussions of each chapter of the book, and more practical insight. 

Get the book here: Thinking Like A Lawyer


The Value of Citing Secondary Sources in Law Practice


Click here for an outline of Thinking like a Lawyer by Fredrick Schauer for a more comprehensive discussion on legal secondary sources.

I love secondary sources.  As many of my friends in law school know/remember, I was borderline obsessed with hornbooks, treatises, and supplements–as an earlier post my reveal–during my first year in law school.  Thus, to no surprise, I have not been gun-shy about grasping for a treatise when looking for a citation. And with my very own Law Review Comment finding its way in the United States Supreme Court and California Supreme Court Briefings, I’ve started to really think about the value of citing secondary authorities.

Now, we all remember from our first year of legal writing that secondary sources are low on the totem pole of authority, being merely persuasive, and less persuasive than out-of-circuit opinions and other non-binding sources.  But can it be true that all treatises, law review articles, and practice guides are created equal?  Or is their a pecking order within secondary sources? Should we rely on the persuasiveness of the reasoning?  Or the learnedness of the source?  I’ve run across some interesting perspectives on secondary sources that address these issues.

First, it’s worth noting that many times the value of a secondary source doesn’t come from its content, but from the sheer fact that the proposition you are supporting is more plausible because someone has said it before.  As Fredrick Schauer (Thinking like a Lawyer), a professor at Virginia School of Law, explains, the judge is persuaded “not so much by the expert’s reasons as by the (judge’s inexpert evaluation of the) expert’s expertise.”  In other words, the judge merely looks at this source as a confirmation of the fact that the source is more likely right than the judge would be if she made her own decision.  The more expert the individual relied upon, the better, especially when it has become common practice for lawyers to rely on a certain treatise—think Rutter Guide in California.

Bryan Garner and Antonin Scalia in “Making Your Case: The Art of Persuading Judges” also agree with the notion that form is more important than substance when it comes to citing secondary sources. They state: Judges will “be persuaded not by the reasoning of your secondary authority but only by the fact that its author agrees with you.” They also advise writers to cite authors most eminent in their respective field, as “the force of the persuasion will vary directly with the prominence of the author.” Garner and Scalia also proceed to derogate the citation of student comments—like my own—unless they are cited because the student comment provides a collection of cases in the applicable area of law.

In sum, there is value in secondary authorities, but intensive focus on the reasoning of that authority or an all-out-search for the perfect proposition stated with the utmost eloquence and absolute coherence is unnecessary; if the author agrees with your conclusion or proposition, that is enough. Professor Schauer instructs that this reflects the law’s intrinsic conservatism, in the non-political sense of the word, and is consistent wit the authoritative character of the law itself. But theory aside, the overall point is clear: it is its very existence that gives a secondary source its value, i.e., the fact that someone has made the same argument before, not its substantive reasoning.

And as a cautionary, no matter how learned the author of the treatise is, or how well-regarded it is by the Supreme Court, Garner and Scalia state that “It’s superfluous—and hence harmful—to cite a secondary authority for a proposition clearly established by governing authority.”