What Do You Say to a Judge?

Attorney Garner and Justice Scalia

The idea of trying to convince a judge of the rightness of your position is as old as the concept of justice itself. And, like all pursuits, there are good ways and not such good ways to engage in legal advocacy. This afternoon, U.S. Supreme Court Justice Antonin Scalia was joined at The Newseum by lawyer, author, and former editor in chief of Black's Law Dictionary Bryan Garner in a spirited discussion of the best ways to make a clear, compelling, persuasive legal argument.

"As long as their have been judges there has been legal advocacy. So it does go back to Aristotle and even before that," Justice Scalia said in his opening remarks at the forum, which was sponsored by The Supreme Court Fellows Program Alumni Association and  The First Amendment Center.

While most of the well-dressed crowd were Washington attorneys and young law clerks looking for legal arguing tips, much of Justice Scalia and Garner's remarks could apply to anyone interested in persuasion such as writers, formal debaters, or even teenagers trying to convince a parent that they  should be allowed to stay out later.

As a basis for their highly entertaining give-and-take talk, Justice Scalia and Garner used a text they had co-written entitled Making Your Case: The Art of Persuading Judges, which in 2009 received  the Burton law book of the year award.

One of the more interesting linguistic debates centered around the idea of using the pronoun he. Garner argued that using he only and not also referring to she or some gender neutral construction leads to sexist language, a contention vigorously disputed by Justice Scalia.

"He is the general term for a person," Justice Scalia said. "Using (something like he/she or he and she) tortures language into some less elegant form. Far from eliminating sex consciousness, it elevates it."

Another dispute arose around the use of contractions with Garner supporting such use and Justice Scalia dissenting. "If you would say it as a contraction, you should write it as a contraction," Garner said.

Justice Scalia acknowledged that contractions have a place in discourse, but argued that place is not in formal, legal writing. "There is a form of language that is used in the marketplace. There is a form of language that is used in the street. And there is a language of dignity. There is a time and a place for everything and the time for contractions is not in a legal brief where you may affront a judge by using contractions," he said.

In jest, if the Supreme Court were to accept contractions, Justice Scalia said "we might as well take off those funny robes, sit around in a circle, and all get real chummy," a remark which drew much laughter from the largely legal crowd.

While there is danger to being too informal with language, there is also danger in using words which make the writer seem too highbrow or too obtuse, both speakers agreed. Justice Scalia said a good rule is to avoid words and phrases that "if you use that word at a cocktail party they would look at you funny."

However, while the style of legal writing is important, it is the law, not the way in which it is couched,  that is paramount.  "The law is the law and it must be applied dispassionately," Justice Scalia said.

Tales, Tidbits, and Tips
I have long maintained that if you sit down with someone you disagree with, you might find they aren't as bad as you imagined. That was the case today with my encounter with Justice Antonin Scalia, known as 1 of the 2 most conservative judges currently sitting on tyhe Supreme Court. Even though I am an uber-liberal, after spending 90 minutes listening to Justice Scalia, I now have much more respect for the man. You can't argue that he is extremely interesting, super intelligent, highly motivated by a moral sense, and laugh-out-loud witty. Like me, he is also a former Jersey boy. There's no doubt that I would welcome Justice Scalia at any intellectual debate or at my Super Bowl Party if I were having one.  Now, if I could just convince him to switch to the liberal left side.