Vermont Bar Journal
Winter 2008 - #5.
Winning the Argument
The Vermont Bar Journal #176, Volume 34, No. 4 WINTER 2008
Winning the Argument
A Pithy Collection of Insights on Effective Advocacy Reviewed by Kevin J. Doyle, Esq.In offering their own contribution to the art of judicial persuasion, Bryan Garner and Justice Antonin Scalia profess to have modest ambitions. They aim to collect the best advice down through the centuries, along with a few of their own suggestions, on how to advocate effectively in the American judicial system.(fn1) As the authors acknowledge (p. xix), it would be difficult to contribute something "fundamentally new" to the field of advocacy. Perhaps it is true that much of what has been written on the topic amounts to variations on a few themes. But given the stature of Garner and Scalia, one anticipates that their book will be more than simply another guide to better lawyering. And this book does not disappoint. There is much to ponder and potentially incorporate into one's own practice of law.
The volume is a pithy collection of 114 points on the improvement of written and oral advocacy skills. Although many of the themes in the book will seem vaguely familiar, either from law school days or courtroom experience, somehow they resonate more convincingly when explained by the unofficial dean of American legal writing and a United States Supreme Court justice, himself no slouch in the writing department. The end result is a compilation of time-tested tips concise in presentation and informal in tone. It alternates as a reminder of principles learned and forgotten, and as a fresh introduction to concepts never encountered, or at least not fully appreciated. While the book is an informative read from beginning to end, it is likely to serve a more useful purpose as a desk reference to be consulted as necessary.
The book is divided into four parts:
(1) general principles of argumentation; (2) legal reasoning; (3) briefing; and (4) oral argument. Interspersed throughout are relevant inset quotations from legal luminaries who have written on the topic before. A sampling of a few of the topics discussed provides a sense of the book: * Point 11: Ostentatiously yield indefensible arguments. In doing so, an advocate conveys reasonableness to the court and inspires confidence in the merits of the remaining arguments. * Point 14: Even if the court's rules do not require it, always state the issue before reciting the facts of the case. Citing the Roman orator and lawyer, Cicero, the authors explain that it is human nature to discern the question to be answered before hearing the narrative of the dispute. * Point 29: Cultivate a lifelong interest in crafting precise and grammatically correct English. Given that language is the tool of the lawyer's trade, it must be used effectively in advocacy. Reminiscent of a bygone time when the law was part of a broader humanistic culture, the authors recommend that lawyers increase their intake of "good prose" as a means of improving their own writing. Somewhat tonguein-cheek, the authors suggest that lawyers model their legal writing not on judicial opinions, but on "a good article in The Atlantic, addressing a generalist audience" (p. 62).
On the mechanics of the briefing process, Scalia and Garner range from the more conventional-Point 40: use captioned section headings; Point 48: cite authorities accurately; Point 35: repeatedly revise written work product)-to the less obvious-Point 36: be as brief as possible because "judges often associate the brevity of the brief with the quality of the lawyer"(fn2); Points 49-50: cite legal authorities sparingly and quote them even less; Point 54: the aesthetics of a brief is important; a brief that is drafted "in an ugly typeface, with crowded lines, will not invite careful perusal."
The final section on oral argument is an excellent primer on effective courtroom advocacy. The authors begin by cautioning lawyers that oral argument is not a mere formality having little bearing on the outcome of the case. If nothing else, "the quality of oral argument can convey to the court that the brief already submitted is the product of a highly capable and trustworthy attorney, intimately familiar with the facts and the law of the case" (p. 140). Scalia and Garner then offer several guidelines to achieve that critical relationship with the court, of which the following is only an introduction:
* Point 56: Practice a conversational delivery, effectively resulting in the court and counsel reasoning together through the legal issue. * Point 57: Avoid undermining your credibility as an informed advocate by mispronouncing English words or legal terms. * Point 62: Be flawless in your command of the record on appeal, including the procedural history. * Point 66: At least in the appellate context, be able to show that the rule of law proposed will produce fair results not only in the present case, but also in future cases. * Points 78 and 87: Commit to memory the opening and closing parts of your presentation. * Point 91: Know the precise titles of the judicial officers before whom you will be appearing. * Point 101: Recognize the function of oral argument and therefore welcome questions from the court. The ability to field unexpected questions, formulate appropriate answers, and integrate the answers into your theory of the case...