★★★★★ 5
A valuable book for non-lawyers and lawyers
Why would non-lawyers want to read a book on persuading judges? For several reasons actually. First, many of us are involved in work that requires persuading others to adopt our views. While legal argument is substantially more formal and rule-driven than what most of us do, learning how to construct a logical argument as if it were to be delivered to the court, that Is governed by deadlines, restrictions on length, the need to adhere to established fact (or to establish those facts) and to be neither groveling nor inflammatory can be applied to selling your widgets.
Perhaps more important is the fact that most people don't understand the impact of the court's decisions on our daily lives, our pocketbooks and our freedoms.
Nine people sit on the Supreme Court. They cannot be removed except for the most grievous crimes and then only if Congress were to agree. More than one Justice has demonstrated that you can be senile and sit on the nation's highest court. Going down the food chain, the same applies to the federal appellate and trial courts. It is unlikely that one person in a hundred can even name a local federal district court judge and probably not one in a thousand could name the nine Supreme Court justices.
Yet these men and women have tremendous impact on our lives, as do the thousands of state court justices.
I am not a lawyer, but I consult to them and am not a stranger to the courtroom, writing drafts for legal briefs, doing legal research and the like. I have seen a lot of judges in action and have learned, in general, to fear them. They can - and do - cause tremendous harm through ill-considered decisions, making decisions with insufficient facts, assuming they know more than they do and myriad other reasons. They are gods in their courtrooms and if your lawyer fails to persuade them of the justness of your cause, you lose.
Just how do these people reach their decisions?
While justice is supposed to be blind (fat chance!), the justices are human and thus persuadable.
Bryan Garner is a noted writer on legal writing. He is actually quite witty as he explains the use of the English language to lawyers who have had their understanding of words driven out of them in law school.
Antonin Scalia is a hero to many for the courageousness of his decisions and dissents, his belief that the Constitution is to be strictly interpreted and his generally brilliant writing style.
In 115, frequently witty, short chapters the two authors (who occasionally openly disagree) lay down their thoughts on how judges can be persuaded.
It is not all about legal writing; e.g, advice to not chew your fingernails and dressing appropriately for court. They advise on giving your oral argument, which a lot of sales and marketing people would do well to read, especially the guidance to "never speak over a judge". In a sales situation, I am surprised at how often the sales person displays his or her contempt for me by not only not listening to me, but presuming they understand the point I was going to make before they spoke over me. I don't know about you, but a lot of salespeople have lost business with me for doing that.
Some of the points the authors make are points of contention themselves: i.e., "swear off substantive footnotes - or not".
None of the material in this book is truly new. Law students get elements of it in their first year as do some college students. A lot can be found in books on to be a better salesperson: i.e., don't chew your fingernails, etc. And a lot of it is plain commonsense.
But that doesn't mean this book is unhelpful. First, it reveals in tiny part how Scalia evaluates the briefs he reads and arguments he hears, which in itself is a fascinating peek. The authors also put things many people may have forgotten through lack of use into perspective. Finally, they remind lawyers and non-lawyers alike that you often have only one shot at winning your argument so you had best put your best foot forward.
Scalia and Garner show you how to do it. Overall, this is a fun, informative and helpful read.
Jerry
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Reviewed in the United States on February 8, 2010
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