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In their professional lives, courtroom lawyers must do these two things well: speak persuasively and write persuasively. In this noteworthy book, two noted legal writers systematically present every important idea about judicial persuasion in a fresh, entertaining way. The book covers the essentials of sound legal reasoning, including how to develop the syllogism that underlies any argument. From there the authors explain the art of brief writing, especially what to include and what to omit, so that you can induce the judge to focus closely on your arguments. Finally, they show what it takes to succeed in oral argument.

Tabla de contenidos provista por Syndetics

• Acknowledgments(p. ix)
• Foreword(p. xix)
• Introduction(p. xxi)
• General Principles of Argumentation(p. 1)
• 1 Be sure that the tribunal has jurisdiction(p. 3)
• 2 Know your audience(p. 5)
• 3 Know your case(p. 8)
• 4 Know your adversary's case(p. 10)
• 5 Pay careful attention to the applicable standard of decision(p. 11)
• 6 Never overstate your case. Be scrupulously accurate(p. 13)
• 7 If possible, lead with your strongest argument(p. 14)
• 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(p. 15)
• 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(p. 17)
• 10 Occupy the most defensible terrain(p. 19)
• 11 Yield indefensible terrain-ostentatiously(p. 20)
• 12 Take pains to select your best arguments. Concentrate your fire(p. 22)
• 13 Communicate clearly and concisely(p. 23)
• 14 Always start with a statement of the main issue before fully stating the facts(p. 25)
• 15 Appeal not just to rules but to justice and common sense(p. 26)
• 16 When you must rely on fairness to modify the strict application of the law, identify some jurisprudential maxim that supports you(p. 30)
• 17 Understand that reason is paramount with judges and that overt appeal to their emotions is resented(p. 31)
• 18 Assume a posture of respectful intellectual equality with the bench(p. 33)
• 19 Restrain your emotions. And don't accuse(p. 34)
• 20 Control the semantic playing field(p. 35)
• 21 Close powerfully-and say explicitly what you think the court should do(p. 37)
• Legal Reasoning(p. 39)
• In General
• 22 Think syllogistically(p. 41)
• Statutes, Regulations, Ordinances, Contracts, and the Like
• 23 Know the rules of textual interpretation(p. 44)
• 24 In cases controlled by governing legal texts, always begin with the words of the text to establish the major premise(p. 46)
• 25 Be prepared to defend your interpretation by resort to legislative history(p. 48)
• Caselaw
• 26 Master the relative weight of precedents(p. 52)
• 27 Try to find an explicit statement of your major premise in governing or persuasive cases(p. 55)
• Briefing(p. 57)
• Introduction
• 28 Appreciate the objective of a brief(p. 59)
• Preparatory Steps
• 29 Strengthen your command of written English(p. 61)
• 30 Consult the applicable rules of court(p. 64)
• 31 Set timelines for the stages of your work(p. 66)
• 32 In cooperation with your opponent, prepare the Joint Appendix(p. 68)
• The Writing Process
• 33 Spend plenty of time simply "getting" your arguments(p. 69)
• 34 Outline your brief(p. 70)
• Opening Brief(p. 71)
• Responding Brief(p. 71)
• Reply Brief(p. 73)
• Petition for Discretionary Review(p. 75)
• Response to a Petition for Discretionary Review(p. 79)
• 35 Sit down and write. Then revise. Then revise again. Finally, revise(p. 80)
• Architecture and Strategy
• 36 Know how to use and arrange the parts of a brief(p. 82)
• Questions Presented(p. 83)
• Statement of Parties in Interest(p. 89)
• Table of Contents; Table of Authorities(p. 89)
• Constitutional and Statutory Authorities(p. 90)
• Statement of Jurisdiction(p. 91)
• Introduction or Preliminary Statement(p. 91)
• Proceedings Below(p. 92)
• Statement of Facts(p. 93)
• Summary of Argument(p. 97)
• Argument(p. 98)
• Conclusion(p. 100)
• Appendix(p. 101)
• 37 Advise the court by letter of significant authority arising after you've filed your brief(p. 101)
• 38 Learn how to use, and how to respond to, amicus briefs(p. 102)
• Writing Style
• 39 Value clarity above all other elements of style(p. 107)
• 40 Use captioned section headings(p. 108)
• 41 Use paragraphs intelligently; signpost your arguments(p. 109)
• 42 To clarify abstract concepts, give examples(p. 111)
• 43 Make it interesting(p. 112)
• 44 Banish jargon, hackneyed expressions, and needless Latin(p. 113)
• 45 Consider using contractions occasionally-or not(p. 114)
• 46 Avoid acronyms. Use the parties' names(p. 120)
• 47 Don't overuse italics; don't use bold type except in headings; don't use underlining at all(p. 122)
• 48 Describe and cite authorities with scrupulous accuracy(p. 123)
• 49 Cite authorities sparingly(p. 125)
• 50 Quote authorities more sparingly still(p. 127)
• 51 Swear off substantive footnotes-or not(p. 129)
• 52 Consider putting citations in footnotes-or not(p. 132)
• 53 Make the relevant text readily available to the court(p. 135)
• 54 Don't spoil your product with poor typography(p. 136)
• Oral Argument(p. 137)
• Introduction
• 55 Appreciate the importance of oral argument, and know your objectives(p. 139)
• Long-Term Preparation
• 56 Prepare yourself generally as a public speaker(p. 142)
• 57 Master the preferred pronunciations of English words, legal terms, and proper names(p. 144)
• 58 Master the use of the pause(p. 146)
• Preliminary Decision: Who Will Argue?
• 59 Send up the skilled advocate most knowledgeable about the case(p. 147)
• 60 Avoid splitting the argument between cocounsel(p. 148)
• Months and Weeks Before Argument
• 61 Prepare assiduously(p. 150)
• 62 Learn the record(p. 151)
• 63 Learn the cases(p. 152)
• 64 Decide which parts of your brief you'll cover(p. 153)
• 65 Be flexible(p. 153)
• 66 Be absolutely clear on the theory of your case(p. 155)
• 67 Be absolutely clear on the mandate you seek(p. 156)
• 68 Organize and index the materials you may need(p. 157)
• 69 Conduct moot courts(p. 158)
• 70 Watch some arguments(p. 159)
• 71 On the eve of argument, check your authorities(p. 160)
• Before You Speak
• 72 Arrive at court plenty early with everything you need(p. 161)
• 73 Make a good first impression. Dress appropriately and bear yourself with dignity(p. 162)
• 74 Seat only cocounsel at counsel table(p. 163)
• 75 Bear in mind that even when you're not on your feet, you're onstage and working(p. 163)
• 76 Approach the lectern unencumbered; adjust it to your height; stand erect and make eye contact with the court(p. 164)
• Substance of Argument
• 77 Greet the court and, if necessary, introduce yourself(p. 166)
• 78 Have your opener down pat(p. 167)
• 79 If you're the appellant, reserve rebuttal time(p. 167)
• 80 Decide whether it's worth giving the facts and history of the case(p. 168)
• 81 If you're the appellant, lead with your strength(p. 169)
• 82 If you're the appellee, take account of what has preceded, clear the underbrush, and then go to your strength(p. 170)
• 83 Avoid detailed discussion of precedents(p. 171)
• 84 Focus quickly on crucial text, and tell the court where to find it(p. 172)
• 85 Don't beat a dead horse. Don't let a dead horse beat you(p. 172)
• 86 Stop promptly when you're out of time(p. 173)
• 87 When you have time left, but nothing else useful to say, conclude effectively and gracefully(p. 173)
• 88 Take account of the special considerations applicable to rebuttal argument(p. 175)
• Manner of Argument
• 89 Look the judges in the eye. Connect(p. 178)
• 90 Be conversational but not familiar(p. 179)
• 91 Use correct courtroom terminology(p. 180)
• 92 Never read an argument; never deliver it from memory except the opener and perhaps the closer(p. 181)
• 93 Treasure simplicity(p. 182)
• 94 Don't chew your fingernails(p. 183)
• 95 Present your argument as truth, not as your opinion(p. 184)
• 96 Never speak over a judge(p. 184)
• 97 Never ask how much time you have left(p. 185)
• 98 Never (or almost never) put any other question to the court(p. 186)
• 99 Be cautious about humor(p. 186)
• 100 Don't use visual aids unintelligently(p. 187)
• Handling Questions
• 101 Welcome questions(p. 189)
• 102 Listen carefully and, if necessary, ask for clarification(p. 191)
• 103 Never postpone an answer(p. 192)
• 104 If you don't know, say so. And never give a categorical answer you're unsure of(p. 193)
• 105 Begin with a "yes" or a "no"(p. 193)
• 106 Never praise a question(p. 194)
• 107 Willingly answer hypotheticals(p. 194)
• 108 After answering, transition back into your argument-smoothly, which means not necessarily at the point where you left it(p. 195)
• 109 Recognize friendly questions(p. 196)
• 110 Learn how to handle a difficult judge(p. 196)
• 111 Beware invited concessions(p. 199)
• After the Battle
• 112 Advise the court of significant new authority(p. 201)
• 113 If you're unhappy with the ruling, think about filing a motion for reconsideration(p. 201)
• 114 Learn from your mistakes(p. 205)
• 115 Plan on developing a reputation for excellence(p. 205)
• Sources for Inset Quotations(p. 207)
• Recommended Sources(p. 213)
• Index(p. 219)

Notas de autor provistas por Syndetics

Antonin Scalia, born in Trenton, New Jersey, was an Associate Justice of the US Supreme Court appointed by President Ronald Reagan in 1986. He served until his death in 2016. He was te first Italian-American justice. He was known for his conservative views and strong defense of the executive branch, believing the President of the United States should be paramount in most areas. In many cases, he wrote differing opinions than the court majority, and used scathing language to get his point across. (Bowker Author Biography)