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Scalia to Join Supreme Court Book Club
The justice is collaborating with legal writing guru Bryan Garner on a book about the art of persuading judges
Legal Times
November 27, 2007
U.S. Supreme Court Justice Antonin Scalia
Image: Nick Lacy
While Supreme Court Justice Clarence Thomas has been out publicizing his bestselling memoir, fellow conservative Antonin Scalia has been quietly writing a book of his own. But Scalia's probably won't be a chart-topper -- except among lawyers.
Without fanfare or publicity, Scalia and Bryan Garner, the legal writing guru, have joined to co-author a book on the art of persuading judges, both orally and in written briefs.
Even though the irrepressible Scalia sometimes irritates rather than persuades the eight judges he happens to work with, the book seems destined to be a must-read for lawyers whose work brings them into courts. As Scalia is often viewed as the Court's best and most entertaining writer, his participation in the project is sure to invite comparison with a guidebook on ballet by Baryshnikov or on golf by Tiger Woods.
"Justice Scalia is a very serious student of advocacy," says Garner, whose Dallas-based LawProse Inc. runs extensive CLE training for lawyers on writing. "The idea is that we can make an important contribution to legal literature... and discuss basic principles of argumentation, rhetoric, and judicial persuasion."
Garner says they have "spent four of the last 14 days side by side in [Scalia's] office," writing and rewriting chapters in the book, a process they began last summer. It's been an interesting experience, says Garner, who is also editor of Black's Law Dictionary.
"We're both very picky about style," Garner says. When they are stuck on some wording problem, Garner says, "He'll stare at it in his office, and say, 'I've got it!' He'll go over to his word processor." But they still disagree at times, and surprising as it may sound, Scalia "defers on all kinds of points," Garner laughs. They have divided the writing equally, Garner says, adding that with all the changes and rewriting, "we can't tell anymore which of us wrote which sentence."
Scalia's voice will be present in the book nonetheless, Garner says. Asked if Scalia, in advising lawyers how to persuade judges, warns against citing legislative history -- one of his pet peeves -- Garner replies, "There is a section on legislative history, but it will surprise you." Garner did not spoil the surprise.
Garner says he proposed the idea of the book in a letter to Scalia a year ago, soon after interviewing the justice for one of his teaching videos. During the interview, Garner realized how similar their views on writing were.
"He believes in efficiency of communication," Garner says. "He doesn't want a lot of words to express an idea." Writing the "question presented" section of an appellate brief clearly and succinctly, for example, is key to Scalia. "All else flows from that," Garner says. "He is impatient to get the goods."
In writing the book, Garner and Scalia have also delved into the classic authorities on rhetoric, persuasion and oratory, such as Cicero, Aristotle and Quintilian. "It sounds heavy, but it's not," says Garner, who describes Quintilian, a Roman rhetorician who wrote volumes on oratory nearly 2,000 years ago, as "Justice Scalia's new hero."
Scalia suggested the book's first working title, "May It Please the Court," Garner says, but then nixed it because it has been used for several other works (including Peter Irons' compilation of taped oral arguments, which upset the Court when first published in 1993.)
Now, also at Scalia's suggestion, the projected title is "Making Your Case: The Art of Persuading Judges." Garner says the publisher will be West.
Asked about the project through Court spokeswoman Kathy Arberg, Scalia gave this statement to Legal Times: "The object of the book is to make available, in a compact and (we hope) readable format, what we think to be the best advice on how to argue a case. It covers both brief-writing and oral argument. And it includes both advice from modern sources and advice from ancient sources adapted to modern American circumstances. We hope it will be helpful to the bar; if so, it will benefit the bench as well."
