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.

Justice Scalia and Me, Part II.

John Eastman, a former Supreme Court clerk and current Chapman law prof, introduced Justice Antonin Scalia for Monday night's Madison Lecture at Chapman.

In the introduction, Prof. Eastman read passages from Justice Scalia's opinions, many of which were in Scalia Dissents. Eastman then remarked ruefully that almost all of them were dissents.

"Dissents Are More Fun"

Justice Scalia acknowledged that he had often written dissents, but noted: "Dissents are more fun."

He said that when one writes the majority opinion, some of the best material is cut out and left on the cutting room floor.

Historical Sketch

In the first part of the speech, Justice Scalia reviewed some history. He said that the federal government's "alphabet agencies", board and commissions demonstrated an obsession with the "expert." This obsession led to a "headless fourth branch".

Justice Scalia observed that it is impossible to take politics out of policy decisions, so this "headless branch" of experts were making political choices, through their policy decisions.

He said that this belief in the "expert" has transmuted into "judge moralists" occupying the bench, who are deciding political questions, such as abortion, suicide and gay marriage, couched in legal language.

Natural Law

Then, Justice Scalia discussed natural law. He said: "I believe in natural law." However, he confessed that his view of natural law differs from others. He said that there is no moral expert to answer these questions.

Justice Scalia asked, "Who in a democratic society has the power to determine what the natural law is?"

He said that divining natural law is often a matter of debate and persuasion. He rejected that there scientifically definable answers to such questions.

Modern Jurisprudence

Justice Scalia condemned modern society as one "addicted to abstract morality". He noted that it is a dangerous practice when reflected in documents of a nation state.

He then upbraided the European Court of Human Rights, lampooning its decision finding a right of privacy to engage in orgies of at least five (5) individuals, who even videotaped their exploits. He said that Court's privacy rule would seemingly protect a group of somewhere between five and the number of people that could fill the coliseum.

Justice Scalia observed that there is nothing in law school or private practice that would qualify him to deal with abortion or assisted suicide.

He said, "My Court has invented the concept of a living constitution".

Justice Scalia criticized Roe v. Wade because while it purported that it was unnecessary to decide when human life begins, he that that question is "central".

Alluding to the current judicial confirmation process in the Senate, "One is tempted to shield his eyes from the upcoming spectacle".

He lamented that "originalists like me cannot get 60 votes to sit on a circuit court" today.

Funny Stuff

In a line that produced one of the biggest laughs, Justice Scalia wondered what a "moderate" interpretation of the constitution would look like. "Is that halfway between what it says and what one would like it to say?"

Justice Scalia reported that Democratic strategist and fundraiser James Carville (ostensibly in error) sent him a fundraising letter during the last election cycle with the envelope emblazoned with the words, "Can you imagine a Chief Justice Scalia?"

Concluding Remarks

Justice Scalia said he was not happy with the politicization of the judicial confirmation process, but he asserted that it was inevitable if judges make moral judgments.

Justice Scalia concluded that he preferred the politicization to a judicial aristocracy.

Justice Scalia and Me.

Supreme Court Justice Antonin Scalia and I got together last night for a discussion on textual interpretation.

He just didn't know it.

Actually, Justice Scalia came to The OC yesterday to deliver a lecture at Chapman University's law school. I was lucky enough to be invited to hear my favorite opinion writer. (Scalia Dissents by Kevin Ring is a tour de force, as noted here previously). However, as an added bonus, I got a seat in the front row.

I remarked to a friend of mine that even if I would be fortunate enough to argue a case before the Supreme Court I still would be farther away than the seat last night.

I'll post later on some Scalia witicisms from the lecture. I brought a legal pad so my readers would be able to enjoy the pearls afterward.