Making Your Case: The Art of Persuading Judges [Englisch] [Gebundene Ausgabe]

If you're a trial lawyer handling your first appeal, you should absolutely read this book cover-to-cover. I've practiced solely appellate law for ten years, seen hundreds of appellate arguments, written hundreds of briefs and argued nearly a hundred cases, attended national trainings on appellate practice, and taught hundreds of new attorneys how to handle their first appellate case. I agree with almost everything the authors have to say-- and what credible authors!

My disagreements:
1) Never summarize your case in the "conclusion" section of the brief. They advise this, and note that many disagree with this. I emphatically disagree with it. A conclusion in the body of the point, at its end, may do very well, but the so-called "prayer for relief" section needs to be one sentence that says precisely what you want the court to do, and nothing else. This way the court knows exactly where to flip to find the remedy you're requesting, and doesn't have to parse a page of text to find it.

2) "And its progeny" is hackneyed? What are you supposed to say? This case and all the cases which grew out of it? Sprung from it? Were decided after it and based on it in some way? Terms which they call "hackneyed" are often the quickest and most precise way to phrase something. So just ignore that paragraph.

3) They "skirt" the issue, by failing to skirt the issue, of women's dress. They only say, "wear dark colors." The new female attorneys do not believe me when I say judges expect them to wear skirt suits to court. I've seen women show up in red shirts under striped pantsuits worn with sandals. They believed they looked professional, but really, they had lost ten points in credibility already. It would have been nice to have a Supreme Court justice address female dress in the courtroom.

4) Quoting. They give the impression that you should never quote, and you should always paraphrase. I disagree. In my opinion, you should have a quote for the standard of review, and a quote for everything that might be controverted. I will summarize general case law into a nice smooth paragraph. But the standard of review is always a series of quotes and cites, and anything that I think the judges might doubt I quote (e.g., if a juvenile invoked right to counsel before being certified, that invocation went poof after they were certified, so until it was reasserted, the cops were free to read him his rights and question him-- that needs quotes.)

5) Sexist language. They disagree on how to deal with this. What you can't do, with all due respect, Justice Scalia, is use "man" for everything, because then you sound like one of those 1950's women-hating guys in horn-rimmed glasses. All the women in the room will think you a caveman. Most sexist language can be avoided easily and grammatically. Where it can't, I find it helpful to just use the gender of the main party in the controversy.

6) Drafting the brief. They assume you have a month to work on your case. They might as well advise you to have your fairy god-mother finish it for you. So, follow their advice, but squeeze it into the three days you actually have. E.g., instead of writing out an outline of your entire case, when you start your point, write your point relied on, then make a descriptive heading for each section of your case (e.g., Facts, Standard of Review, Law on admitting a breath test, the state failed to lay a proper foundation for the admission of the test results, the other evidence failed to prove intoxication, conclusion.) Then you've outlined your case and written your headings all at once.

7) In a criminal case, it's perfectly fine for the state to call the appellant, "the appellant," throughout the case. It's not "too cute," as the authors say, because the state is always "the state," so their side is already depersonalized. And, it makes it really easy for the appellate court to remember who's who.

8) Never use footnotes for anything you want the court to read. I completely agree with Scalia's writing on this issue.

9) In oral argument, if you're through, you need to sit down. Now. They talk about having a big lengthy end summary. That may be required in the United States Supreme Court, but it's pretty ridiculous elsewhere. My shortest argument was forty seconds long. (Yes, I won, and yes, they were visibly relieved.) I almost always leave half or more of my time unused. And do, do, do, say, "If there are no further questions," pause briefly and make eye contact with all judges, "we ask that you" and state what you want the court to do (remember that one sentence in your prayer for relief?). That's a much more effective close to your argument than trying to summarize your whole case for judges who just wish you'd sit down.

So, I say definitely read this book-- even experienced counsel will find something in it that can improve their practice. But also realize this book is written for a general appellate audience, and especially the US Supreme Court, and therefore needs to be tweaked to fit practice in your specialty.

I am not a lawyer, but I love reading about persuasion and influence. This book caught my attention out of left field, but it certainly added a lot of value to my understanding of persuasion from a logical and argumentative point of view.

Most of the books I've read on persuasion focus on the emotional appeals that move people and mention that you need to give a rational argument for the decision so the persuadee can feel good about it. This book teaches you how to make that rational argument, but it does more than that. It teaches you how to frame the argument before it is made so that it will be more persuasive when it is made. The portion focused on the development of the syllogism was particularly interesting.

Definitely a book that you will want to read whether your are in the legal arena or not - if you want to know how to influence and persuade.

Whether or not you agree with Justice Scalia's opinions from the Supreme Court, this book as a primer on briefs and oral argument is excellent. I wish that I had this book for moot court. The brief writing section was far better than any of the books I had to help me. The oral presentation section identified solutions to problems that frustrated me. If you are not a lawyer you will likely find the oral argument section interesting and helpful, but find the minutia of the brief writing section boring. As a lawyer, I will reread this book from time to time.

Justice Scalia recognizes there are other viewpoints; he discusses them but then explains why his view is better.

The book presents all viewpoints and follows with their own and why theirs is better. For example, the book points out that although they believes underlining is a crude throwback to the typewriter , Bluebook approves the use of underlining. The book states that underlining is unnecessary in the 21st century with a word processor. They follow with suggesting that Bluebook should be revised. The book suggests using italics where you would have used underlining. They add that very limited use of italics is far better than liberal use. Justice Scalia's differences of opinions extend to his coauthor.

Bryan Garner, author of Garner's Modern American Usage, The Elements of Legal Style and editor in chief of Black's Law Dictionary did not agree with Justice Scalia on all points. Some section headings state a definite rule, followed by "or not." For example: "Consider using contractions occasionally--or not." These sections take the form of majority opinion vs. minority opinion. Mr. Garner's opinion is presented, Justice Scalia follows with his opinion and his analysis on why Mr. Garner was wrong and why Justice Scalia is right.

The book is organized logically, and with brevity.
The book in its 245 pages discusses:
* the general purposes of oral argument,
* legal reasoning, brief writing, and finally
* the crafting of the oral argument itself.

It discusses these topics more thoroughly than some books that are three times its size. Subsections have a clear heading and to the point discussion. Most subsections, although fully treated, are one to two pages long, some less than a page.

Finally
The book shows how to tailor your arguments for a singular audience, the judge, distinguished even from arguing before a jury. It gives tactics to use with difficult judges, lazy judges, and their law clerks. It gives the view from the bench when the lawyer reacts to bad questions from the judge. It describes the likely outcomes, and it offers way to avoid confrontation, while still making your argument. It is a good book.