Batman and Robin

Following up on our earlier discussion of Justice Scalia‘s recent interview on 60 Minutes (available here and here, in its entirety), Justice Scalia and Bryan Garner have also given a fascinating audio interview to the ABA Journal’s Richard Brust regarding their newly-published book, Making Your Case: The Art of Persuading Judges.

The ABA Journal has also posted some great excerpts from the book, including the following snippets.

On the right and wrong way to frame the relief you seek:

Wrong:

The undersigned counsel do hereby for and on behalf of their clients, for the reasons explained hereinbelow, respectfully request that this Honorable Court consider and hereby rule that no issues of material fact do exist in the instant controversy, and that a final judgment be entered in favor of the client of the undersigned counsel (sometimes herein referred to as “Defendant” or “Cross-Plaintiff”) and against Plaintiff.

Right:

Johnson requests entry of summary judgment.

On signposting one’s arguments:

There are many such guiding words and phrases: moreover, however (preferably not at the head of a sentence), although, on the other hand, nonetheless, to prove the point, etc. These words and phrases turn the reader’s head, so to speak, in the direction you want the reader to look. Good writers use them abundantly.

Normally, the very best guiding words are mono­syllabic conjunctions: and, but, nor, or, so and yet. Pro­­­fessional writers routinely put them at the head of a sen­tence, and so should you.

On eliminating jargon:

Banish jargon, hackneyed expressions and needless Latin. By “jargon” we mean the words and phrases used almost exclusively by lawyers in place of plain-English words and phrases that express the same thought. Jargon adds nothing but a phony air of expertise. A nexus, for example, is nothing more or less than a link or a connection. And what is the instant case? Does it have anything to do with instant coffee?

* * *

Write normal English. Such as a demonstrative adjective (such action) can almost always be replaced with the good old normal English this or that. And hereinbefore with earlier. And pursuant to with under. The key is to avoid words that would cause people to look at you funny if you used them at a party.

On avoiding clichés:

Hackneyed expressions are verbal formulations that were wonderfully vivid when first used, but whose vividness—through overuse—no longer pleases but bores. Such-and-such a case “and its progeny” is a good example. Or the assertion that an argument is “fatally flawed” or “flies in the face of” something; that your adversary is “painting with a broad brush”; that a claim isn’t “viable”; that the “parameters” of a rule aren’t settled; or that something is true “beyond peradventure of doubt.” The test is: Have you seen the vivid phrase a lot? If so, odds are it’s a cliché.

On avoiding unnessecary Latin phraseology:

Judges are permitted to show off in this fashion, but lawyers must not. And the judge who does not happen to know the obscure Latin phrase you have flaunted will think you a twit.

On the careful use of humor during oral argument, Justice Scalia recounts the unfortunate joke told by Texas assistant AG Jay Floyd during the oral arguments in Roe v. Wade, 410 U.S. 113 (1973), in which he began by remarking:

Mr. Chief Justice, and may it please the court, it’s an old joke, but when a man argues against two beautiful ladies like this, they’re going to have the last word.” No one laughed. Onlookers said that during an embarrassing silence, Chief Justice Burger scowled at the advocate.

On handling a difficult judge during oral argument:

A noted barrister, F.E. Smith, had argued at some length in an English court when the judge leaned over the bench and said: “I have read your case, Mr. Smith, and I am no wiser than I was when I started.”

To which the barrister replied: “Possibly not, My Lord, but far better informed.” Smith, who later became a famous judge as the Earl of Birkenhead, could reportedly carry off such snappy rejoinders with impunity.

We doubt that, but in any case we don’t recommend that you emulate him.

Thx to the ABA Journal and Volokh

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