At the State Bar of Texas annual meeting, U.S. Supreme Court Justice Antonin Scalia and Bryan A. Garner discussed how to persuade judges with the written word and in oral argument. Garner, a Texas lawyer and president of a consulting firm teaching advocacy, is co-author with Scalia of "Making Your Case: The Art of Persuading Judges," published last year.
Scalia, in his saucy and sarcastic manner, served up quite a few tips. For writing briefs, Scalia endorsed the use of conjunctions at the beginning of a sentence, even starting a sentence with "but." He regards as "hackneyed" the expressions "fatally flawed" and "Roe v. Wade and its progeny."
As far as the use of contractions, Scalia and Garner have agreed to disagree, but the justice favors leaving them out of briefs. Scalia dubbed them "Jacobin" and argued they "pull everything down to the street level." He asked rhetorically, "Is any judge going to get mad because you don't use contractions?" In addition, Scalia said that legal writing with lots of italics tends to read "like a high school girl's diary."
Perhaps his sternest warning was about citations. Characterize cited precedents accurately: "When a judge sees that you are playing fast and loose with a citation, he is not going to believe the rest of your brief." Another hot topic: footnotes. Scalia, despite his co-author's strongly held alternative view, endorsed the use of footnotes -- even to advance arguments -- but he wants citations placed in the text.
As for oral argument, Scalia told the lawyers to welcome questions from the bench, to be likable, to enunciate correctly and carefully (particularly justices' names and any Latin words), and not to glance at the clock when a justice interrupts with a question.
He counseled lawyers to look judges in the eye; when faced with a hypothetical panel of nine justices, advocates should not gaze solely at the ninth justice, who may be the swing vote in a 5-4 decision. "He will be embarrassed, and the other justices will be mad," Scalia explained.
Scalia's pet peeve: when lawyers respond to a hypothetical example by saying it is "not this case." Going through his mind at that point, Scalia said, is the thought, "I know it's not this case, you idiot." But appellate judges must make decisions that govern many cases, not just the one before them, he explained.
This article first appeared on the Tex Parte blog on TexasLawyer.com.