Tips From the Top: Justice Scalia, Garner Advise on Art of Persuasion
The answer to the question of how lawyers can persuade courts to decide in their favor is the same as the answer given to musicians who want to get to Carnegie Hall — practice, practice, practice.
Justice Antonin Scalia, associate justice of the Supreme Court of the United States, and Bryan A. Garner, president of LawProse, Inc., brought their message of the need for consummate preparation in advocacy to the opening plenary of the ABA National Legal Malpractice Conference in Washington, D.C., on April 15. Scalia and Garner are co-authors of the book, Making Your Case: The Art of Persuading Judges.
According to Garner, few judges are being convincingly persuaded. “There is a crisis in advocacy,” he said. Scalia countered, “I am always amazed at the quality of advocacy at the court.” “I keep reminding him that the advocacy is quite advanced by the time lawyers are before the Supreme Court,” said on-stage foil Garner.
While the level of advocacy at the highest court was reported to be, generally, of top quality, Scalia and Garner both offered common sense tips about preparation and practice that can escape even the most seasoned lawyer.
The speakers agreed that oral argument is an art that takes time to refine. Garner said that many lawyers do not have enough practice in public speaking and that every opportunity to speak in public is one that should be taken. Scalia concurred, adding that a practiced public speaker will have “no ‘ums’ or ‘ers’” and will know how to modulate his voice.
In lockstep with practice is preparation. Scalia said the more you can think about the key points of your case ahead of time throughout the day — even while getting ready to go to work or driving — the better equipped you will be to answer questions at oral argument. This includes going over the entire record of the case in your mind and making notes to have in court.
“Be absolutely clear on the mandate you seek,” emphasized Scalia and Garner. A judge from the District Court of Minnesota told Garner that, apart from being sure they want to win their cases, “80 percent of lawyers don’t know what they want.”
Scalia and Garner pointed out that even lawyers who know the key points they want to present in argument will go astray if they are not flexible, respectful and perceptive. For example, Scalia stated, “You are not going to be able to go through arguments in the order you want. Be prepared to jump from one point to respond to a question. … You always go where the judge takes you. Never say, ’I’ll get to that in a moment.’”
Scalia also had advice for lawyers who try to play to a specific audience. “Don’t talk to just one judge, even if you know the court is 4-4. If you’re playing to one person it’s insulting.”
Other advice included learning to welcome questions from the justices, never postponing an answer, admitting when you don’t know the answer, beginning with a firm ‘yes’ or ‘no’ when responding to a question, recognizing friendly questions lobbed from the bench and willingly answering hypothetical questions.
“If you are arguing before an appellate court, it really isn’t about win or lose,” said Scalia. “[The court] cares more about the rule of law. … In order to see how the rule could play out, it is necessary to ask hypotheticals. Don’t say, ‘Your honor, that’s not this case.’”
Garner explained that the key is to learn from mistakes made in court. “Take the time to figure out what you could have done better. That’s the way to improve.”
“Win or lose,” Scalia summarized, “If your performance has won respect and admiration from the court, then you haven’t lost.”
The ABA National Legal Malpractice Conference is an event of the ABA Standing Committee on Lawyers’ Professional Liability.