Scalia illustrates the art of judicial persuasion

By Laura Ernde
Staff Writer

What kinds of things do appellate lawyers do to get under the skin of U.S. Supreme Court Justice Antonin Scalia? Plenty, judging from his Jan. 31 talk at the University of San Francisco School of Law.

Photo by Shawn Calhoun, USF

Scalia ticked off a number of annoyances: waving your eyeglasses around for effect (“childish”), reading from your briefs (“Not in my court!”) and overstating the facts (“I’m inclined to think you’re a blowhard”).

Along the way, Scalia and Bryan A. Garner — the lawyer and lexicographer he collaborated with on two books about legal writing — offered some valuable tips for lawyers on ways to improve their legal writing and oral advocacy skills during their keynote speech for the USF Law Review Symposium, “Legal Ethics in the 21st Century: Technology, Speech and Money.”

“Our ethical duty hinges on the ability to speak and write truthfully and well,” said Elif Sonmez, a third-year law student at USF who is the Law Review Symposium Editor.

Scalia and Garner based their talk on the first book they wrote together in 2008, “Making Your Case: The Art of Persuading Judges.”

Here are some bits of advice they shared:

• Know your audience. “Find out everything you can about the judge you’re arguing about,” Scalia said.
• Learn the case inside and outside the record. Write down a thousand questions about the case.
• Lead with your best argument. Contrary to the great philosopher Aristotle, who advised starting with your second-strongest argument and ending with the strongest, a different approach is necessary for legal brief writing because a judge might not read to the end.
• Be willing to concede points that aren’t essential to your case. Identify those points ahead of time so you can answer any hypothetical question posed during oral argument.
• Identify your best points and stick to them. “Lawyers don’t win on those buckshot arguments,” Scalia said.
• Terminology matters. Don’t use acronyms and give some thought to what names you use. American Airlines lawyers shouldn’t refer to their company as “double A” or “the carrier” when they could call themselves “American.” “Let the other side be anti-American,” Garner said.
• Practice improves public speaking and reading good writers improves writing.
• Treasure simplicity. “Don’t make a simple case complex. Make a complex case simple,” Scalia said. “Be Joe DiMaggio.”

Scalia and Garner agreed that while the basic principles of ethics and effective advocacy have remained fairly constant, technology has made things more complicated.

“The modern lawyer confronts a lot more ethical questions than used to be the case,” Scalia said.