Book Review: Making Your Case: The Art of Persuading Judges (2008).

“Common sense is not so common.”
--Volaire

Justice Antonin Scalia and Bryan Garner's Making Your Case: The Art of Persuading Judges contains common sense and not-so-common sense tips on legal writing and oral argument.

It's common sense to not "chew your fingernails" (p. 183) in court; to "[k]now your case" (p. 8); and to "know your audience". (p. 5.) Consequently, tips like these simply reinforce what their readers already know (or should know).

However, the book shines when it delves into the uncommon variety. Making Your Case's superior advice concerns crafting legal briefs in two interrelated respects. First, it argues that framing the issue is the most crucial part. It urges that the "questions presented" or statements of issues lead the brief. (e.g., p. 83.) The authors provide an insightful comment attributed to Clarence Darrow (and others) that he would take any side of the case as long as he could frame the issue. (p. 83.)

Second, the text explains how to frame the issue employing a legal syllogism with a major premise, a minor premise, and a conclusion. In Making Your Case, the major issue contains the legal principle or authority. The minor premise constitutes the factual application of the case to the major premise. And the conclusion asks the question (preferably suggesting the answer). Example:

"OSHA rules require every incident-investigation report to contain a list of factors that contributed to the incident. The report on the June 2002 explosion at the Vespante plant listed the contributing factors not in the body of the report but in an attachment entitled 'Contributing Factors.' Did the report thereby violate OSHA rules?" (p. 88.)

The authors follow their own advice by using straightforward declarative sentence headings. These headings are arranged as the table of contents, so one could glean much of the book's content by reading these 115 sentences. The writers organize their 115 lessons into four sections: "General Principles of Argumentation", "Legal Reasoning", "Briefing", and "Oral Argument". The last section is probably the least compelling because, as the authors concede, it is rarely persuasive. "Does oral argument change a well-prepared judge's mind? Rarely." (p. 139.)

A co-written book, Making Your Case almost never attributes a section explicitly to one author. However, Justice Scalia's trademarked wit gives him away often. As the book skews a bit toward federal practice, and within that, to US Supreme Court litigation, I suspect this emphasis reflects Justice Scalia's input. Nevertheless, the principles are nearly universal.

The authors veer from their general approach by engaging in a couple of skirmishes. These involve the use of footnotes and contractions. (pp. 114, 129, 132.) Garner displays a healthy self-esteem as he is willing to argue, in print, with Justice Scalia. He'll need that as Scalia essentially destroys Garner's positions, often invoking his rarefied experience as a Justice to which Garner can have no rejoinder. In one poignant example, Garner gives Scalia an opening approximating the Grand Canyon. Garner argues that contractions are appropriate for legal briefs because "every President since Gerald Ford in 1975 has used contractions in the State of the Union Address." (pp. 115-16.) Scalia responds, "[T]he State of the Union Address is not writing but (hello!) an address. The rules for oral communication are different. A proper test would be whether Presidents use contractions in their signing statements, veto messages, and executive orders. (They do not.)" (p. 117.)

Whether common or uncommon, the sensible tips contained in Making Your Argument elevate it to a preeminent book on legal reasoning and writing. Recommended to law students and practicing lawyers.