Making your case The art of persuading judges
Book - 2008
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- Subjects
- Published
-
St. Paul, MN :
Thomson/West
c2008.
- Language
- English
- Main Author
- Other Authors
- Physical Description
- xxiv, 245 p. ; 22 cm
- Bibliography
- Includes bibliographical references (p. 213-218) and index.
- ISBN
- 9780314184719
- Acknowledgments
- Foreword
- Introduction
- General Principles of Argumentation
- 1. Be sure that the tribunal has jurisdiction
- 2. Know your audience
- 3. Know your case
- 4. Know your adversary's case
- 5. Pay careful attention to the applicable standard of decision
- 6. Never overstate your case. Be scrupulously accurate
- 7. If possible, lead with your strongest argument
- 8. If you're the first to argue, make your positive case and then preemptively refute in the middle-not at the beginning or end
- 9. If you're arguing after your opponent, design the order of positive case and refutation to be most effective according to the nature of your opponent's argument
- 10. Occupy the most defensible terrain
- 11. Yield indefensible terrain-ostentatiously
- 12. Take pains to select your best arguments. Concentrate your fire
- 13. Communicate clearly and concisely
- 14. Always start with a statement of the main issue before fully stating the facts
- 15. Appeal not just to rules but to justice and common sense
- 16. When you must rely on fairness to modify the strict application of the law, identify some jurisprudential maxim that supports you
- 17. Understand that reason is paramount with judges and that overt appeal to their emotions is resented
- 18. Assume a posture of respectful intellectual equality with the bench
- 19. Restrain your emotions. And don't accuse
- 20. Control the semantic playing field
- 21. Close powerfully-and say explicitly what you think the court should do
- Legal Reasoning
- In General
- 22. Think syllogistically
- Statutes, Regulations, Ordinances, Contracts, and the Like
- 23. Know the rules of textual interpretation
- 24. In cases controlled by governing legal texts, always begin with the words of the text to establish the major premise
- 25. Be prepared to defend your interpretation by resort to legislative history
- Caselaw
- 26. Master the relative weight of precedents
- 27. Try to find an explicit statement of your major premise in governing or persuasive cases
- Briefing
- Introduction
- 28. Appreciate the objective of a brief
- Preparatory Steps
- 29. Strengthen your command of written English
- 30. Consult the applicable rules of court
- 31. Set timelines for the stages of your work
- 32. In cooperation with your opponent, prepare the Joint Appendix
- The Writing Process
- 33. Spend plenty of time simply "getting" your arguments
- 34. Outline your brief
- Opening Brief
- Responding Brief
- Reply Brief
- Petition for Discretionary Review
- Response to a Petition for Discretionary Review
- 35. Sit down and write. Then revise. Then revise again. Finally, revise
- Architecture and Strategy
- 36. Know how to use and arrange the parts of a brief
- Questions Presented
- Statement of Parties in Interest
- Table of Contents; Table of Authorities
- Constitutional and Statutory Authorities
- Statement of Jurisdiction
- Introduction or Preliminary Statement
- Proceedings Below
- Statement of Facts
- Summary of Argument
- Argument
- Conclusion
- Appendix
- 37. Advise the court by letter of significant authority arising after you've filed your brief
- 38. Learn how to use, and how to respond to, amicus briefs
- Writing Style
- 39. Value clarity above all other elements of style
- 40. Use captioned section headings
- 41. Use paragraphs intelligently; signpost your arguments
- 42. To clarify abstract concepts, give examples
- 43. Make it interesting
- 44. Banish jargon, hackneyed expressions, and needless Latin
- 45. Consider using contractions occasionally-or not
- 46. Avoid acronyms. Use the parties' names
- 47. Don't overuse italics; don't use bold type except in headings; don't use underlining at all
- 48. Describe and cite authorities with scrupulous accuracy
- 49. Cite authorities sparingly
- 50. Quote authorities more sparingly still
- 51. Swear off substantive footnotes-or not
- 52. Consider putting citations in footnotes-or not
- 53. Make the relevant text readily available to the court
- 54. Don't spoil your product with poor typography
- Oral Argument
- Introduction
- 55. Appreciate the importance of oral argument, and know your objectives
- Long-Term Preparation
- 56. Prepare yourself generally as a public speaker
- 57. Master the preferred pronunciations of English words, legal terms, and proper names
- 58. Master the use of the pause
- Preliminary Decision: Who Will Argue?
- 59. Send up the skilled advocate most knowledgeable about the case
- 60. Avoid splitting the argument between cocounsel
- Months and Weeks Before Argument
- 61. Prepare assiduously
- 62. Learn the record
- 63. Learn the cases
- 64. Decide which parts of your brief you'll cover
- 65. Be flexible
- 66. Be absolutely clear on the theory of your case
- 67. Be absolutely clear on the mandate you seek
- 68. Organize and index the materials you may need
- 69. Conduct moot courts
- 70. Watch some arguments
- 71. On the eve of argument, check your authorities
- Before You Speak
- 72. Arrive at court plenty early with everything you need
- 73. Make a good first impression. Dress appropriately and bear yourself with dignity
- 74. Seat only cocounsel at counsel table
- 75. Bear in mind that even when you're not on your feet, you're onstage and working
- 76. Approach the lectern unencumbered; adjust it to your height; stand erect and make eye contact with the court
- Substance of Argument
- 77. Greet the court and, if necessary, introduce yourself
- 78. Have your opener down pat
- 79. If you're the appellant, reserve rebuttal time
- 80. Decide whether it's worth giving the facts and history of the case
- 81. If you're the appellant, lead with your strength
- 82. If you're the appellee, take account of what has preceded, clear the underbrush, and then go to your strength
- 83. Avoid detailed discussion of precedents
- 84. Focus quickly on crucial text, and tell the court where to find it
- 85. Don't beat a dead horse. Don't let a dead horse beat you
- 86. Stop promptly when you're out of time
- 87. When you have time left, but nothing else useful to say, conclude effectively and gracefully
- 88. Take account of the special considerations applicable to rebuttal argument
- Manner of Argument
- 89. Look the judges in the eye. Connect
- 90. Be conversational but not familiar
- 91. Use correct courtroom terminology
- 92. Never read an argument; never deliver it from memory except the opener and perhaps the closer
- 93. Treasure simplicity
- 94. Don't chew your fingernails
- 95. Present your argument as truth, not as your opinion
- 96. Never speak over a judge
- 97. Never ask how much time you have left
- 98. Never (or almost never) put any other question to the court
- 99. Be cautious about humor
- 100. Don't use visual aids unintelligently
- Handling Questions
- 101. Welcome questions
- 102. Listen carefully and, if necessary, ask for clarification
- 103. Never postpone an answer
- 104. If you don't know, say so. And never give a categorical answer you're unsure of
- 105. Begin with a "yes" or a "no"
- 106. Never praise a question
- 107. Willingly answer hypotheticals
- 108. After answering, transition back into your argument-smoothly, which means not necessarily at the point where you left it
- 109. Recognize friendly questions
- 110. Learn how to handle a difficult judge
- 111. Beware invited concessions
- After the Battle
- 112. Advise the court of significant new authority
- 113. If you're unhappy with the ruling, think about filing a motion for reconsideration
- 114. Learn from your mistakes
- 115. Plan on developing a reputation for excellence
- Sources for Inset Quotations
- Recommended Sources
- Index