Dear Legal Writer: “Making Your Case” by Bryan Garner and Justice Antonin
Scalia

Dear Legal Writer: “Making Your Case” by Bryan Garner and Justice Antonin
Scalia

Dear Legal Writer, If you want a quick read that’s chock-full of info & advice on written & oral advocacy, I recommend:

“Making Your Case: The Art of Persuading Judges,” by the late U.S. Supreme Court Justice Antonin Scalia and the well-known, legal-writing scholar, Bryan A. Garner (“MYC”).

Here are some views expressed in the book; I welcome your thoughts:

1️⃣ Don’t deal with the standard of review in boilerplate fashion.

“When the standard of decision favors your side of the case, emphasize that point at the outset of your discussion of the issue—and keep it before the court throughout.” (MYC at 11.)

“When the standard of decision is against you, acknowledge the difficulty but demonstrate concretely why the standard is met. Go beyond repetition and mere stock phrases.” (MYC at 12.)

🗳️ I see lawyers use a boilerplate standard of review all the time; in fact, some briefs only mention it in passing. What is your practice? Do you agree with the advice in MYC?

2️⃣ Don’t rely on the style of your trial-court briefs when writing on appeal.

“[T]rial judges are fundamentally different from appellate judges. [Trial judges] focus on achieving the proper result in one case, not on crafting a rule of law that will do justice to the generality of cases. . . .

[A]t the trial-court level you are well advised to spend more time on the facts and on the discussion of precedent . . . and less time on policy arguments. . . .

That’s one reason why a good trial brief can rarely be used before an appellate court without major changes.” (MYC, at 7.)

🗳️ I agree with the authors here. In what other ways do you treat appellate briefs differently from trial-court briefs?

3️⃣ Don’t just work backwards from a brief’s due date. (MYC at 66-67.)

Instead, set interim deadlines for each stage in the writing process:

A/ Developing & gathering ideas from the case file and research results.
B/ Arranging the ideas into an outline.
C/ Writing the text.
D/ Letting the text “cool.”
E/ Revising the text.
F/ Editing & re-editing the text to produce a polished, final version.

{*The stages MYC sets forth are modeled on the 4-step Flowers Paradigm (Madman-Architect-Builder-Judge)—a writing model that Garner made famous in the legal-writing context (see, e.g., Garner’s “The Winning Brief.”}

🗳️ Are you familiar with the Flowers Paradigm, or should I do a post on it?

🗳️ Do you set interim deadlines for the stages of your legal writing projects? Has doing so helped you?

I have additional highlights and questions, too. For space here, I’ll save for a future post.

Thank you for all thoughts on the 🗳️questions embedded above.

Fondly,
💌 Amanda