Before a sizable crowd of lawyers and law students at Kennedy Center's Concert Hall, Supreme Court Justice Antonin Scalia and co-author Bryan Garner have been holding forth today in what has to be one of the most unusual continuing legal education courses of all time. They are alternating their way through all 115 "tips" for better advocacy included in their book Making Your Case: The Art of Persuading Judges.
"I've always wanted to be center stage at the Concert Hall,' Scalia said, though he confessed he prefers the adjacent Opera House. Self-effacingly, Scalia said the daylong course was likely to be “the dullest act” the hall had ever hosted, except for atonal music concerts that might have taken place there.
But far from dull, the Scalia-Garner duet was full of funny asides and useful advice. “Lawyers are generally lousy writers,” Scalia lamented, advising them to read non-legal prose and to love language and words. Be concise, Scalia commanded. “You want to acquire a reputation as a lawyer who comes in under the page limit.” Any case will have weak points, Scalia said, so if you have to give ground, you might as well impress the judge with your fairness and “concede ostentatiously.” When Garner argued for presenting no more than three points in most legal briefs, Scalia chimed in that three was a very important number in life, as in “three coffee beans in your anisette.”
One priceless moment came when it was Scalia's turn to talk about the next tip on the list, which advised lawyers to be prepared to use legislative history in defending their interpretation of statutes. "Why did you give me this one?" Scalia said with mock horror. Scalia, after all, is a diehard opponent of using legislative history, which he says can be doctored and misused. But Scalia rose to the occasion anyway, acknowledging that some judges think legislative history is valid. If you have to use it, Scalia said, "Do it boldly, as though it makes sense."