Vermont Bar Journal
The Art of Persuasian
THE VERMONT BAR JOURNALVolume 35, No. 3Fall 2009The Art of PersuasianScalia and Garner Tackle Appellate ArgumentReviewed by Richard T. Cassidy, Esq.Making Your Case is quite a different book than I expected. The title, the identity of the lead author-Supreme Court Justice Antonin Scalia-and his television interviews about it, left me with the impression that the book focused on the underlying psychology of persuading judges and on the policy arguments that prove most effective.
Perhaps indirectly that is what the book addresses. But at its base, it is a primer on how to write a brief and argue it on appeal. The authors occasionally bow towards motion presentations in the trial courts, but fundamentally the book is about the basics of appellate practice.
Of course. Justice Scalia is best known for his ideological bent. You will find little of that here. The closest he comes is to observe that some judges are "policy oriented" while others are "textually oriented." His co-author, Bryan Garner, is an advocacy teacher and writer whose other credits include The Elements of Legal Style and Garner's Modern American Usage.
Certainly any lawyer who lacks extensive experience in the appellate courts will benefit from this well-constructed how-to book. And even experienced appellate counsel will pick up some new ideas from reading it.
Let me give you a few of my favorite examples. The authors suggest approachingthelecternfororal argument carrying only a single manila folder with no papers inside. Instead they would have you write bare-bones notes inside the folder itself. The idea is that such notes cannot get out of order or end up falling to the floor. And a second point for oral argument deals with the need to respond immediately and directly to the court's questions and yet to work one's way back-gracefully but quickly-to covering the points that the lawyer thinks are important. The authors tell us that when he was a regular advocate before the Supreme...