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Making Your Case The Art of Persuading Judges

ISBN-10: 0314184716
ISBN-13: 9780314184719
Edition: 2008
List price: $29.95 Buy it from $20.30
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Description: In their professional lives, courtroom lawyers must do these two things: speak persuasively and write persuasively. In this noteworthy book, two of the most noted legal writers of our day - Justice Antonin Scalia and Bryan A. Garner - systematically  More...

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Book details

List price: $29.95
Copyright year: 2008
Publisher: West
Publication date: 6/6/2008
Binding: Hardcover
Size: 5.50" wide x 8.00" long x 0.50" tall
Weight: 0.946
Language: English

In their professional lives, courtroom lawyers must do these two things: speak persuasively and write persuasively. In this noteworthy book, two of the most noted legal writers of our day - Justice Antonin Scalia and Bryan A. Garner - systematically present every important idea about judicial persuasion in a fresh, entertaining way. Making Your Case: The Art of Persuading Judges is a guide for novice and experienced litigators alike. It covers the essentials of sound legal reasoning, including how to develop the syllogism that underlies any argument. From there the authors explain the art of brief writing, expecially what to include and what to omit, so that you cn induce the judge to focus closely on your arguments. Finally they show what it takes to succeed in oral argument. The opinions of Justice Scalia are legendary for their sharp insights, biting wit, and memorable phrasing. The writings of Gryan Garner, Editor in chief of Black's Law Dictionary, are respected inside and

Bryan A. Garner is president of LawProse, Inc., and Distinguished Research Professor of Law at Southern Methodist University. The editor-in-chief of Black's Law Dictionary, Garner is the author of several best-selling books, including Garner's Modern American Usage and, with Justice Antonin Scalia, Reading Law: The Interpretation of Legal Texts and Making Your Case: The Art of Persuading Judges.

Acknowledgments
Foreword
Introduction
General Principles of Argumentation
Be sure that the tribunal has jurisdiction
Know your audience
Know your case
Know your adversary's case
Pay careful attention to the applicable standard of decision
Never overstate your case. Be scrupulously accurate
If possible, lead with your strongest argument
If you're the first to argue, make your positive case and then preemptively refute in the middle-not at the beginning or end
If you're arguing after your opponent, design the order of positive case and refutation to be most effective according to the nature of your opponent's argument
Occupy the most defensible terrain
Yield indefensible terrain-ostentatiously
Take pains to select your best arguments. Concentrate your fire
Communicate clearly and concisely
Always start with a statement of the main issue before fully stating the facts
Appeal not just to rules but to justice and common sense
When you must rely on fairness to modify the strict application of the law, identify some jurisprudential maxim that supports you
Understand that reason is paramount with judges and that overt appeal to their emotions is resented
Assume a posture of respectful intellectual equality with the bench
Restrain your emotions. And don't accuse
Control the semantic playing field
Close powerfully-and say explicitly what you think the court should do
Legal Reasoning
In General
Think syllogistically
Statutes, Regulations, Ordinances, Contracts, and the Like
Know the rules of textual interpretation
In cases controlled by governing legal texts, always begin with the words of the text to establish the major premise
Be prepared to defend your interpretation by resort to legislative history
Caselaw
Master the relative weight of precedents
Try to find an explicit statement of your major premise in governing or persuasive cases
Briefing
Introduction
Appreciate the objective of a brief
Preparatory Steps
Strengthen your command of written English
Consult the applicable rules of court
Set timelines for the stages of your work
In cooperation with your opponent, prepare the Joint Appendix
The Writing Process
Spend plenty of time simply "getting" your arguments
Outline your brief
Opening Brief
Responding Brief
Reply Brief
Petition for Discretionary Review
Response to a Petition for Discretionary Review
Sit down and write. Then revise. Then revise again. Finally, revise
Architecture and Strategy
Know how to use and arrange the parts of a brief
Questions Presented
Statement of Parties in Interest
Table of Contents; Table of Authorities
Constitutional and Statutory Authorities
Statement of Jurisdiction
Introduction or Preliminary Statement
Proceedings Below
Statement of Facts
Summary of Argument
Argument
Conclusion
Appendix
Advise the court by letter of significant authority arising after you've filed your brief
Learn how to use, and how to respond to, amicus briefs
Writing Style
Value clarity above all other elements of style
Use captioned section headings
Use paragraphs intelligently; signpost your arguments
To clarify abstract concepts, give examples
Make it interesting
Banish jargon, hackneyed expressions, and needless Latin
Consider using contractions occasionally-or not
Avoid acronyms. Use the parties' names
Don't overuse italics; don't use bold type except in headings; don't use underlining at all
Describe and cite authorities with scrupulous accuracy
Cite authorities sparingly
Quote authorities more sparingly still
Swear off substantive footnotes-or not
Consider putting citations in footnotes-or not
Make the relevant text readily available to the court
Don't spoil your product with poor typography
Oral Argument
Introduction
Appreciate the importance of oral argument, and know your objectives
Long-Term Preparation
Prepare yourself generally as a public speaker
Master the preferred pronunciations of English words, legal terms, and proper names
Master the use of the pause
Preliminary Decision: Who Will Argue?
Send up the skilled advocate most knowledgeable about the case
Avoid splitting the argument between cocounsel
Months and Weeks Before Argument
Prepare assiduously
Learn the record
Learn the cases
Decide which parts of your brief you'll cover
Be flexible
Be absolutely clear on the theory of your case
Be absolutely clear on the mandate you seek
Organize and index the materials you may need
Conduct moot courts
Watch some arguments
On the eve of argument, check your authorities
Before You Speak
Arrive at court plenty early with everything you need
Make a good first impression. Dress appropriately and bear yourself with dignity
Seat only cocounsel at counsel table
Bear in mind that even when you're not on your feet, you're onstage and working
Approach the lectern unencumbered; adjust it to your height; stand erect and make eye contact with the court
Substance of Argument
Greet the court and, if necessary, introduce yourself
Have your opener down pat
If you're the appellant, reserve rebuttal time
Decide whether it's worth giving the facts and history of the case
If you're the appellant, lead with your strength
If you're the appellee, take account of what has preceded, clear the underbrush, and then go to your strength
Avoid detailed discussion of precedents
Focus quickly on crucial text, and tell the court where to find it
Don't beat a dead horse. Don't let a dead horse beat you
Stop promptly when you're out of time
When you have time left, but nothing else useful to say, conclude effectively and gracefully
Take account of the special considerations applicable to rebuttal argument
Manner of Argument
Look the judges in the eye. Connect
Be conversational but not familiar
Use correct courtroom terminology
Never read an argument; never deliver it from memory except the opener and perhaps the closer
Treasure simplicity
Don't chew your fingernails
Present your argument as truth, not as your opinion
Never speak over a judge
Never ask how much time you have left
Never (or almost never) put any other question to the court
Be cautious about humor
Don't use visual aids unintelligently
Handling Questions
Welcome questions
Listen carefully and, if necessary, ask for clarification
Never postpone an answer
If you don't know, say so. And never give a categorical answer you're unsure of
Begin with a "yes" or a "no"
Never praise a question
Willingly answer hypotheticals
After answering, transition back into your argument-smoothly, which means not necessarily at the point where you left it
Recognize friendly questions
Learn how to handle a difficult judge
Beware invited concessions
After the Battle
Advise the court of significant new authority
If you're unhappy with the ruling, think about filing a motion for reconsideration
Learn from your mistakes
Plan on developing a reputation for excellence
Sources for Inset Quotations
Recommended Sources
Index

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