Book Review: ‘Making Your Case’ The Art of Persuading Judges by Antonin Scalia and Bryan A Garner

Whilst this text is written primarily for advocates practising in America the sub-title is entirely accurate in that contained within this excellent book are a number of points that all advocates can learn from in regards to persuading judges.

For those members who have attended SAHCA Advocacy training sessions over the past few years or have attended the Annual Conference you are likely to recall one of our American members, Charles Dewey Cole Jr., a trial lawyer and teacher of advocacy from New York state, who regularly attends our events. Dewey always makes the point that techniques of advocacy apply regardless of your particular jurisdiction or discipline and it was no surprise to me to see Dewey's name amongst the acknowledgments in this tome.

In terms of the authors they are people who really know what they are talking about. Antonin Scalia is a Justice of the Supreme Court of the United States whilst Bryan A. Garner as president of LawProse Inc. has taught advocacy to more than 90,000 lawyers.

As both an advocate and part-time judge I found myself, as I read the text, nodding along with the sentiments expressed. The book is split into the following 4 sections:

General Principles of Argumentation;
Legal Reasoning;
Briefing and
Oral Argument.

I'm not going to summarise them all here (otherwise what would be the point of your reading it and because I wouldn't want to be sued for infringing copyright) but will just give you some of the distinct sub-headings which are in themselves virtually a mantra of good practice:Never overstate your case – be scrupulously accurate.

  • If possible, lead with your strongest argument.
  • Communicate clearly and concisely.
  • Take pains to select your best arguments - concentrate your fire.

Indeed elements almost verge on 'The Art of War' by Sun Tzu e.g. “Occupy the most defensible terrain”, “Yield indefensible terrain – ostentatiously” although I must confess that I didn't see it mentioned in the bibliography...

If this brief review has whetted your appetite I am sure that you can obtain “Making Your Case” from all good bookshops but currently on it is retailing at £17.50 for the hardcover and £15.75 for the Kindle edition (and no, I'm not on commission).

Leslie Cuthbert
SAHCA Vice-Chair