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.