The most important question on any attorney’s mind, especially when going before a judge or panel of judges is: how do I persuade the judge to my view?
Answer? Preparation and practice. Or at least that the opinion of Justice Antonin Scalia, associate justice on the US Supreme Court, and Bryan Garner, president of LawProse, Inc. and editor of such works as Black’s Law Dictionary and A Dictionary of Modern Legal Usage. Together the two have also published Making Your Case: the Art of Persuading Judges. As reported by ABANow, they recently spoke to ABA National Legal Malpractice Conference in Washington, D.C., on April 15.
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.
If Supreme Court advocacy never fails to impress Scalia, apparently lower court judges must still endure mediocre oral advocacy, or at least oral advocacy that could stand improvment. And so the Scalia/Garner team offered some tips.
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.
All great advice, no matter your line of work or area of practice. It doesn’t matter if you are responding to a question from your boss, a client, a spouse or a stranger, principles of courtesy, punctuality, and competency extend to all.
One suggestion that I thought was especially important, however, especially in the practice of law, is that of practicing communication, be it oral or written. Knowledge is important, and we lawyers tend to accrue a lot of it, but the ability communicate clearly and effectively cannot be replaced or compensated for. And even when mistakes are made, it is important to learn from those mistakes.
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.”