Book Review: Scalia and Garner, “Making your case” (2008)

Following a suggestion from my online book retailer’s computer, I bought “Making Your Case: The Art of Persuading Judges” by Antonin Scalia and Bryan Garner.

Both authors know their own minds, have strong opinions, and expect to be obeyed. And rightly so, at least in the field covered by this short and highly readable book which is mainly directed at appellate proceedings. Its advice on persuasion is also useful to trial lawyers. The 115 points in numbered paragraphs cover general principles of argumentation, legal reasoning, preparation of the documents, and presentation of oral argument.

On a few points the authors make no secret of their disagreement with each other. Here they are like Sumo wrestling Denny Cranes. Garner is OK with contractions (you can write can’t instead of cannot) but Scalia isn’t. Garner thinks that “he” can never mean “he or she”, whereas Scalia thinks it can. Garner thinks that footnotes should contain only a bare minimum of information, whereas Scalia wouldn’t go that far but would agree that they shouldn’t contain new arguments. Garner thinks citations should be relegated to footnotes, whereas Scalia prefers not to change established practice (although he would support avoiding breaking up with citations sentences that could be rewritten to place those citations at their ends).

Learning to write and speak correctly is important. There is a correct way to write. Grammar does matter. Words have precise meanings. (Despite current trends in usage, “begging” the question does not mean “raising” the question or “ignoring” the question, it means circular reasoning – assuming as true the very thing in dispute.) What you read will affect how you write, so read well. Throughout this book there are inset quotations, and the relevant one here (para 29) is from the Rt Hon Lord Birkett, “Cultivate the love of words …”.

Emotional restraint is essential: judges heartily dislike antagonism (para 19). Sound advice for advocates, but apparently not applicable to the current judges of the Supreme Court of the United States (including Scalia himself) whose occasional petulant cat-fighting at least helps to keep readers amused.

Every barrister would find this book useful. And no, you can't borrow my copy.