So, now that the "60 Minutes" Scalia segment is over, what about the book that triggered the publicity? It's already climbing up the Amazon bestseller ranking to 522 in the last hour, and it won't officially be published until Monday.
We've been able to peruse the book Making Your Case: The Art of Persuading Judges, coauthored by legal writing expert Bryan Garner. We were under an embargo that prohibited writing about the book until after the CBS News broadcast. Some quick observations, now that the embargo is lifted:
- It is indeed a must-read for any lawyer whose job entails arguing, in writing or in person, before a judge. Even though some of its admonitions are beyond obvious (such as, "Know Your Case,") it is a nuanced "how to" book that will offer page after page of useful advice for advocates.
- One example: Don't use the kitchen sink strategy of throwing at the judge every conceivable argument your legal team can think up. Pick your best three, at most, the book advises. "Arm-wrestle, if necessary, to see whose brainchild gets cut."
- Another tip: research the judge's background and idiosyncrasies before you argue. "At the very least, these details will humanize the judge before you, so that you will be arguing to a human being instead of a chair."
- Some of the advice is a bit stuffy. It tells male lawyers with ponytails, "We don't recommend this coiffure if advocacy before elderly judges is your day job."
- As you might expect with Scalia as one of the authors, the book is laced with humor. The book advises, "Never never patronize a judge by volunteering, 'That's a very good question.' Of course it is! All judges' questions are ex officio brilliant."
- The co-authors disagree at times, producing interesting debate. Garner, for example, could not recruit Scalia for his longrunning crusade against including case citations in the text of briefs. Garner views it as a distracting interruption of the flow of the prose, but Scalia says that putting the citation details in a footnote "would force the eyes to bounce repeatedly from text to footnote."
- The organization of the small, 206-page book is simple and straightforward: 115 numbered pieces of advice, organized by subject matter, with inset quotes by authorities ranging from Cicero to Alex Kozinski to E. Barrett Prettyman Jr.
UPDATE: The ABA Journal has posted excerpts from the book here.