Book Review: Making Your Case

This article is reprinted with permission from the June 11, 2008 edition of the New York Law Journal. Copyright 2008 ALM Properties, Inc.
All rights reserved. Further duplication without permission is prohibited.

Wednesday, June 11, 2008

New York Law Journal p. 2 (col. 3)
LAWYER’S BOOKSHELF

Making Your Case: The Art of Persuading Judges
By Antonin Scalia and Bryan A. Garner. Thompson/West, St. Paul, MN, 245 pages, $29.95
Reviewed by Phil Schatz

It is a truism, set forth in one of the two competing epigraphs of Making Your Case – The Art of Persuading Judges, the engaging new advocacy primer co-written by Supreme Court Justice Antonin Scalia (a sitting Supreme Court Justice noted for his style, wit, and pugnacity) and Bryan Garner (the preeminent teacher and scholar of legal writing and advocacy), that no one can learn advocacy solely from a book. Practice and exercise are essential. But it is equally true, as noted in the first epigraph, that no lawyer may succeed as an advocate without the diligent study of sound principles. Foundation principles, ignored at the advocate’s peril, do exist and must be learned and relearned to the point that they become second nature. The authors’ stated, and modest, goal is to make these foundation principles, established by such ancients as Aristotle and Cicero, accessible to the modern practitioner.

Of course, lawyers’ offices are full of musty legal tomes that sit unread and unused on the shelves. To avoid this fate, Making Your Case is geared toward utility. It is compact and portable. Each of its four principal divisions, distilling the best of the ancient wisdom with some personal glosses – general principles of argumentation; legal reasoning; briefing; and oral argument – can be read in its entirety, with minimal effort, in one short sitting. It is manufactured for regular use, made from heavy paper stock, with a solid cover and tight binding. It is designed for maximum usefulness, with an unusually thorough index and table of contents, well-chosen quotations, and a comprehensive list of sources for further study. And it is very modestly priced. For these reasons, Making Your Case is very highly recommended to all legal practitioners, no matter how experienced, who want to improve the quality and force of their written and oral argumentation.

Although Making Your Case borrows much of its tone and content from Garner’s more detailed The Winning Brief and The Winning Oral Argument, the book is truly a joint effort between the two authors. According to Garner, who had both the credentials and the chutzpah to approach Scalia unsolicited to participate in the project, each of the authors wrote independently on each of the topic areas, and then worked together to combine the sections. With the exception of the four points of disagreement, the individual contributions have been merged so seamlessly that, according to Garner, neither author can conclusively claim credit for any particular section.

Although they have received the most press, none of the areas of disagreement is very weighty. Breaking with his own prior advice, Garner no longer prohibits the use of contractions in legal writing, because contractions can improve readability. Scalia contends that contractions are vulgarisms that may needlessly offend judges’ sense of dignity. Garner advocates gender-neutral language. Scalia (surprise!) contends that gender-neutral language sacrifices force and simplicity for “second-best circumlocution,” although even he recognizes that he is on the losing side of this issue. (New York lawyers would do well to remember that the Rule 12.1 of the New York Law Reports Style Manual (the “Tan Book”) requires gender-neutral writing). Garner believes in the complete elimination of substantive footnotes. Scalia generally agrees, but points out that the Solicitor General uses substantive footnotes to provide non-essential elaboration or to answer collateral questions that judges or law clerks might ask themselves while considering the main points of the brief. Finally, Garner has long advocated, against prevailing practice, that all citations should be relegated to footnotes. Scalia objects because “the careful lawyer wants to know, while reading along, what the authority is for what you say.” Scalia jokes that it is each lawyer’s prerogative whether to follow his advice or “go with the other, erroneous authority.”

The authors agree far more than they disagree. Clarity is the primary goal of all writing, and clarity may only be achieved by learning to think syllogistically and doing the heavy lifting before putting pen to paper. A good oral argument can, in fact, change the result of a case. Answer the judges’ questions. Know precisely what relief you want, and make sure the court is empowered to give it.

A major area of agreement is that most legal writing is “turgid” because lawyers don’t read enough. “One of our more important recommendations in the book is that lawyers read other stuff,” says Scalia in his recent interview in the May ABA Journal, “Read good literature, good current literature. If you only read legal opinions, you’re going to write like legal opinions – which is not what you want to do, generally.” And lawyers should not only practice reading, but also writing and speaking. “Seek out opportunities for writing,” the book advises, “not just briefs but also essays for bar journals, op-ed pieces, encomiums for departing colleagues, letters to friends – whatever will get you in the habit of converting thought into clear prose.”

Most of the rules in this little book will strike most readers as obviously true. And yet, the rules are violated by many, if not most, lawyers on a regular basis, due to the usual reasons of inadequate time, insufficient money, and fatigue. Lawyers who seek to follow rule 114, learn from your mistakes, and rule 115, plan on developing a reputation for excellence, will recognize that perfection is a worthy but impossible goal, and remember the importance of continual improvement. Daniel Webster, asked how long he prepared for an argument, is reported to have answered “my whole life”. According to Justice Robert Jackson, one judicial stylist much admired by both authors, every forensic effort is the product of a lifetime of preparation.

According to Scalia, who is surely in a position to know, the average lawyer is a mediocre advocate. This book seeks to raise the average. Most of us will never be great advocates, but we can all be good advocates. And the path to good advocacy is internalizing and repeatedly practicing the simple rules in such books as Making Your Case.