Posted May 01, 2008 01:00 pm CDT
ABA JOURNAL: We’re here in Washington, and we’re here with Justice Scalia and with Bryan Garner in Dallas. We’re talking about their new book, and the book is called Making Your Case, and it’s coming out this year.
Bryan and I have chatted a little bit in preparation about how he and you, Justice Scalia, prepared the book and collaborated with each other. Let me start off with Justice Scalia, with a general question. Why another book? Why another book about advocacy and argument?
JUSTICE SCALIA: Well, obviously because we thought we had some things to contribute that we thought earlier books did not. And it would be a shame to have all of that knowledge go to the grave with us.
BRYAN GARNER: It’s not just a book about Supreme Court advocacy at all. It’s about advocacy in courts at all levels, anywhere. And some of the great insights of Justice Scalia are about Supreme Court advocacy. But we both purposely broadened it to deal with trial courts and intermediate appellate courts, as well.
SCALIA: And my experience is not just on the Supreme Court but on the court of appeals for four years. And both of us consulted a large number of friends who are advocates or judges on lower courts. So, Bryan is quite right. I should have focused more carefully upon your question. It’s not just about Supreme Court advocacy. In fact, one of the hard parts about writing the book was making sure that the things we said would be applicable to all three levels of courts, and to say so when it was not applicable to all three.
ABAJ: What would the quality of advocacy be like if people were following your book? How would it improve specifically? What sorts of things would lawyers be doing having read the Scalia and Garner book that they haven’t been doing before?
SCALIA: Well, they would be a lot more brief. One of the main—and this is not a novel recommendation by any means—but one of the pieces of advice that almost any judge will give you is that lawyers go on for too long and when they do it doesn’t help their case.
GARNER: And I might say that we have tried to give nuts-and-bolts advice on how to be brief. Not just exhortations to be brief, but how to frame an argument that is much more focused. And to answer your question, Richard, from my point of view you would have briefs that are much more polished and cogent and oral arguments that are much more polished and professional.
It’s not to say that advocacy is really poor in this country, but my own view is that it is mediocre in most of our lower federal courts and state courts. And advocates have a long way to go to come up to the level where they’re going to be as much of a help to the courts as possible.
SCALIA: You know, I guess in the strict sense advocacy like everything else will always be mediocre, if by mediocre you mean average. Our hope is the raise the average.
It reminds you of that line from—what is the show? The little town in Minnesota where all the children are above average? It’s impossible to have everybody above average, but we hope to raise the average.
ABAJ: When I read the book, one of the underlying themes that came through to me was—and correct me if I’m wrong—is that one thing that would help an advocate would be to think as the judge would think, to get into the judge’s head. Because one thing that you did say was to keep in mind that the argument is the beginning of the judges’ conference. And I thought that was a very interesting way to put it.
How important is it to understand what is going on in the judge’s mind? Is that something we should be thinking about as an advocate in brief writing and oral argument?
SCALIA: That’s not distinctive to argument in the form of the courts. In any argument, in trying to persuade anyone, step number one is way up in the front of our book, General Considerations: Know your audience. That’s always the first thing. You stress different points, you make a different kind of appeal depending on what your audience is.
ABAJ: And who the judge is.
SCALIA: And to some extent who the judge is. We note in the book that it’s important to find out what you can about the court before which you are appearing. And some law firms, indeed, keep book on various judges. You know, whether they’re short tempered, whether they cut counsel off if he goes on too long, and so forth.
ABAJ: What’s the book on you, Justice Scalia?
SCALIA: I have no idea. I have no idea.
ABAJ: Let’s say lawyers are arguing in front of you. What are the two or three things they should know about you to win you over, to better your argument?
SCALIA: Oh, I don’t want to give that away. It would make it too easy.
GARNER: I can answer part of that question…
ABAJ: Go ahead, Bryan.
GARNER: …about Justice Scalia by mentioning something that he said in his interview with me, and what started this whole project, is that he really really wants people to answer hypothetical questions. Isn’t it fair to say, Justice Scalia, that if somebody says, “That’s not my case,” to one of your hypotheticals that that kind of sets you off?
SCALIA: I do not like to hear that, that’s quite right. But more generally, I suppose there are some things that are distinctive about my jurisprudence which I am sure that lawyers who appear before this court know or ought to know.
For instance, I don’t use legislative history. For instance, I am a textualist. Don’t talk to me about what the best answer ought to be. I am interested in what was the answer that Congress chose.
Now, we make this point in the book, that when you are dealing with a multi-judge panel, you can not pitch your brief or your oral presentation to the peculiarities of a single judge. So I would expect counsel appearing before my court to talk about legislative history. Even though he knows that it’s not going to make a difference to me, it does make a difference to my colleagues.
And likewise, some of my colleagues place greater stress upon on policy consequences than I do. So you have to address both those considerations—text and consequences.
ABAJ: One question—if I can go a little bit away—is that I know you focus on text and statutory construction and dislike legislative history. Do you think law students would be better served if they focused more on statutory construction than the case method? I know in your book, A Matter of Interpretation you write about the glories of reading all the case law and stepping into the judge’s seat and make law and write history. I wonder if you think the case method should be altered.
SCALIA: Well, I have made that very point on occasions when I speak to law faculties and when I give a lecture at a law school. I often have a brown bag lunch with the faculty and that sort. And if they ask me how would I improve the current process of law teaching, I do make the point that what judges do nowadays is very little common law. But what they do almost all the time, is that they interpret a text. They almost always have a text in front of them. And yet, at least when I went to law school, we didn’t have a single textual course in the first year. And I think the law schools are changing that. I think that more and more of them are introducing a course on legislation, or on statutory construction, in the first year. I think that’s important, not just for what it teaches but for the perspective that it gives to the novice lawyer. This is not a world of the common law. It’s a world in which textual interpretation is very important.
ABAJ: Getting back to the book, I just wonder, how do you teach someone to be a better oral advocate, a better brief writer? How much of the successful litigator is teaching, how much of it is pure innate ability?
SCALIA: Let Bryan answer that because he does a lot more of the teaching than I do.
GARNER: Well, I think you can teach a lot towards guiding people to what they ought to be doing, and what they ought not to be doing. And ultimately, of course, it takes practice. You can’t learn public speaking from a book. You can’t learn to write well from merely reading about writing. You have to do a lot of writing, as well. But there’s a balance to be struck. If you just write a lot without any instruction and without reading about how effective writers do it, then it’s not going to be nearly as helpful as the experience might be. So it may seem strange to try to teach oral argument out of a book, but our book makes the point that you have to look for guidance and practice and get criticism from colleagues, as well.
So all these things come together, but what we try to do is point people in some very good directions, and do it in a very down-to-earth practical way.
ABAJ: There are several things in the book that struck me. One thing that you had in there is you had a very interesting section about using humor in arguments. And you picked an example that would just about chill the spine of anybody who got in front of the court. It think it might have been the Casey [v. Planned Parenthood of Pa.] case.
SCALIA: No, I think it was Brown [v. Board of Education].
GARNER: It was Roe v. Wade.
ABAJ: Oh, OK, Roe v. Wade, going back that far. Just as with any comedian who gets in front of an audience and there’s no response, it’s almost like they died a second death. Should litigators stay away from humor?
SCALIA: That’s what our recommendation is. The game is not worth the candle. You may not be as good a humorist as you think, because appropriate humor takes a real sense of what you can get away with, what is condign for the circumstances. And not a lot of people have that feel.
And secondly, not every judge has a sense of humor.
ABAJ: Nor every litigator.
SCALIA: That’s exactly right. So, our advice is don’t take a chance.
ABAJ: Has there ever been a situation where somebody did something…
SCALIA: Oh, it can be effective on occasion. We say in the book sometimes when a lawyer does have this skill, with a very gentle and often self-deprecating remark can relieve the tension and make the exchange much more conversational and friendly.
But as I say, there are not many people that can do that, and it’s not worth it. But you should always, of course, we go on to say that you should display appropriate appreciation for any attempt at humor by the court.
ABAJ: What does that mean?
SCALIA: It means you laugh at their jokes.
ABAJ: That reminds me, someone wrote an article that said you were the funniest, or the most humorous justice. Had you read that article? If not, I’ll send you a copy of it.
SCALIA: No, someone told me about it. They counted the number of laughs.
ABAJ: The laugh meter. Justice Scalia, how often does your own opinion or your own sense of a case change by a brief or an oral argument? Give a percentage. How often does that happen? You didn’t think it was going to be one way going in but all of a sudden you were just swayed by it.
SCALIA: Well, I never think which way I’m going to come out going in. It isn’t that the brief changes my mind; I don’t have a mind concerning the case until I’ve read the briefs.
So, I think the important question, which is often asked, is whether having read the briefs—and the briefs are extensive here at the court—60 pages from the petitioner and the respondent …
ABAJ: Is that too much?
SCALIA: It’s too much for some cases. And it’s up to the lawyer to know when 40 pages is enough. And, as we say in the book, the best lawyer will come in with 40 pages. And the judge will read every one of those 40 pages because he knows this lawyer. And this lawyer always stops when he knows he’s said everything that is worth saying.
But after you get done reading all these briefs and a 40-page reply by the petitioner, you know, it’s a good question: What can you possibly hear in half an hour of oral argument that’s going to make any difference? And the answer is very often you come in on the knife’s edge, quite undecided. And oral argument can turn the corner.
ABAJ: Has there been a case recently where that might have happened?
SCALIA: Oh, there have been many cases.
ABAJ What’s the best brief you’ve ever read since coming to the court? The one you’ve put a gold star on and held up and promised litigators, If you can do this, by golly, you’re going to be great.
SCALIA: No, I haven’t …
ABAJ: Nothing jumps out? Or the best oral argument?
SCALIA: It would probably be easier to pick the worst.
ABAJ: OK, what’s the worst?
SCALIA: No, I better not tell you that one, either.
ABAJ: There are several things you put in the book that I find very interesting that lawyers should know to do. And having gone through law school—I’ve never done any oral advocacy myself—but knowing the standard of review, always ask for rebuttal time, use maxims to drive the argument. These are things that, as far as I know, most lawyers don’t do. These are sort of failings among litigators.
SCALIA: Let Bryan take this.
GARNER: Would you mind rephrasing the question. I’m sorry.
SCALIA: Pay attention, Bryan.
ABAJ: Well, I was just pointing to several things you put in the book that, in my learning oral advocacy in law school, just sort of went right past me. What standard of review that you’re going to use, what exactly you are asking the court to do. Are those failings, and are they deadly failings?
GARNER: They’re fairly common failings. I’ve spoken recently to people while we were working on the book. I’ve talked to some state appellate judges who said that they believe that in 65 percent of the cases, of oral advocates who came before them—I’m talking about state intermediate appellate judges –the advocates did not know precisely what relief they wanted. They didn’t know exactly what they wanted the court to do. They just knew that they wanted to win.
And this is really, wouldn’t you say, Nino, that this is one of the most basic points that any advocate ought to know to bring with them to court, any court?
SCALIA: Oh, absolutely, absolutely correct. I expect the experience of federal courts is a little more favorable. I mean, that’s part of the problem of trying to address advocacy at every level. I think that particular flaw is probably more common in lower state courts than it is in the federal system. But it exists in the federal system just as well. I wouldn’t say 65 percent of the cases, though.
ABAJ: That’s a good amount there.
GARNER: One of the good ideas that we got for the book, we certainly canvassed the literature very carefully. We looked at every book and every article—mostly articles. Some of them are fairly obscure. Every article published on advocacy that we could find, or written over the last several thousand years—I mean, going back to the ancient Greeks—a lot of these principles do continue to apply to modern advocacy. And we tried to bring our own experience to show how some of these insights can help advocates in modern American courts.
The other thing that we benefited from—as Justice Scalia mentioned a moment ago—was the comments from our friends who are judges and lawyers. They contributed a great many insights. This idea about using maxims to buttress an argument if you don’t have a particular case on point, to rely on equitable maxims was one of the insights that one Justice Scalia’s readers mentioned that led to the development of the idea.
ABAJ: That’s interesting; that’s interesting. There’s been a lot of writing lately about the growth of a specialized Supreme Court bar. I know that Richard Lazarus, I think of Georgetown, came out with a paper about that. Do you sense that that has occurred, and if it has, how has it affected the quality of advocacy? One of the things, I think, that’s been noted is that you’re seeing more and more of the same advocates coming before the court than you used to.
SCALIA: That’s certainly true. I think that there are a significantly larger number of lawyers who appear at least once a term and sometimes several times a term than was the case when I first came on the court.
In addition, a significant development in the states has been that many states have established the office of solicitor general, the equivalent of federal solicitor general, someone who is really expert at oral argument rather than relying on the attorney general, or some staffer in the attorney general’s office. And that’s made a big difference.
And I think one can say that those who do it with great frequency and are paid a lot of money because they are good at it are obviously going to be better—other things being equal—than a novice.
But you would be mistaken if you think that it is a large number of our cases that are argued by what you might call the Supreme Court bar. It remains a very small percentage.
ABAJ: Do you have any particular affection for somebody who, say, is from Nebraska and he’s arguing his first case before the Supreme Court, and he’s a little wet behind the ears? Has that ever happened, where you say, gee, this guy’s interesting; he’s a little different from what we’ve had before us?
SCALIA: Oh, some of them are terrific. I mean, frankly, I’ve been more surprised at how good the average lawyer who appears before us is, rather than how bad.
I think there are some wonderful advocates out there working for the state government, or for legal defense operations.
Yeah, I by no means mean to suggest that it’s only the, quote, professional Supreme Court bar that gives us good arguments. That’s not true at all.
ABAJ: I know when I talked to Bryan he described the book as a collaboration and a true collaboration. There are some sections in it that some of us back in the ABA in Chicago were wondering, whose hand is behind this? And there’s one question I’m going to have to ask. In the section about questions, answering questions, the line, “Just answer the damned question.” It jumped right out of the page at us.
SCALIA: You had an earlier version. We took out the “damned.”
ABAJ: Is that right? That’s too bad.
SCALIA: Yeah, I thought it was better, to tell the truth.
GARNER: We cut the “damned”?
SCALIA: Yes, we did, Bryan.
GARNER: So we don’t have to talk about who contributed the “damned” in the first place.
SCALIA: Right, because it’s gone. So it doesn’t matter.
GARNER: It’s been expurgated.
ABAJ: Too bad.
SCALIA: All the inappropriate stuff in there is Bryan’s.
ABAJ: That raises another question. There are sections in there—and please tell me you haven’t deleted these—where the fun of the book comes out in that Bryan takes one point of view, and you, Justice Scalia, take a totally different point of view; and you’re actually dissenting. Bryan said you just decided that this is the best way to present the issue. Tell me a little about your thinking on that.
SCALIA: Well, there were just a few points on which—if I may put it this way—Bryan was just intractable. And he was going take that approach even though I thought it was fundamentally wrong. But he would not be moved, because he had been digging these holes for himself for a number of years, and was not going to repudiate his life’s work. That includes, if I can recall them all, the use of contractions, eliminating all substantive footnotes—without exception—and putting the citations 123 F.2d 232…
ABAJ: String cites all …
SCALIA: …all that in footnotes rather than stringing them along. Now, there are some judges who do all three of these things. But I don’t think it’s good advice for an advocate, and Bryan thinks it is, and it was rather fun having at each other on these subjects. I’m glad you enjoyed it, because we did, anyway.
ABAJ: If I may jump in, it was funny because the first time I came across it, there was Bryan’s point of view, then you have Justice Scalia’s point of view. And I’m thinking: “The guy just loves writing dissents. There’s no doubt about it.” (Laughter)
SCALIA: That may be it. We should have done it the other way. I should have said my point of view first and you could write the dissent.
GARNER: He had more fun dissenting, though. I will say, from my point of view, here I was taking what are to me very reasonable positions, and he was totally intractable.
ABAJ: And that’s how laws are made, folks. What does the reader do when he comes across this—decide we’ll combine both, or …
GARNER: Combine both. It seems to me that the reader is going to have to decide which point of view is the better one. And not all readers are going to come to the same conclusions; but at least we aired the two points of view very well.
SCALIA: And we do that elsewhere as well, not just where we disagree…
GARNER: …And it’s absolutely not a fair fight, given who my co-author is.
SCALIA: Well, I don’t know about that. But we do this not just where we disagree ourselves, but at several points in the book we acknowledge that the recommendation we are giving is not agreed with by some respected authorities. We fess up to that and then tell why we think our approach is the better one. Once again, it will be up to the reader. If he wants to go with the other, erroneous authority, that’s his prerogative.
ABAJ: Another section of the book sort of jumped out at me because it just sounds like it had Justice Scalia’s hand a little bit in it. Towards the end of the oral argument section you talk about how to discern whether the justice is helping you out with the questions he asks, and how you handle a difficult judge. Was this something from your experience, Justice Scalia?
SCALIA: I’ve had that experience on both sides: arguing cases and being the difficult judge myself. Obviously, one of the most important things for counsel to master is how to handle a judge who is not agreeing with him and who will not let go. It’s a problem, and a problem that you’ve got to be prepared to deal with.
ABAJ: And what about the flip side of it: Recognizing when the judge is helping you out? It would seem to me that’s a very difficult thing for a litigator to accept.
SCALIA: You would be amazed at how often counsel does not realize that he’s being thrown a life preserver. And fights the assistance that a judge is trying to give him. But that’s one of the things that has to be learned.
ABAJ: Why is that? Is it because he’s so involved his own presentation that he doesn’t listen?
SCALIA: I don’t know what the reason is. Maybe insecurity. He assumes that anything that comes from the court is trying to hurt him.
GARNER: Some people go to oral argument and they see any questions as being hostile. Of course, a seasoned advocate knows much better than that.
ABAJ: How have litigators changed over the course of your tenure?
SCALIA: Really, not much. And you could probably have asked the same question of Aristotle and he would have told you the same thing. This is a profession that’s been going on for a long time; as long as there have ever been courts, there have been advocates. And there have been people trying to give advice to advocates. I haven’t found any significant change.
ABAJ: Bryan, does that square with your sense of it on the teaching end of things?
GARNER: I think it does. Yes.
ABAJ: Justice Scalia, who are your favorite judges? And your favorite lawyers when you were learning and going through your career? When you’re on the bench, is there ever a moment when you say, “Gee, if only I could bring in Justice Harlan,” let’s say…
SCALIA: I sit in Harlan’s seat on the court, the second… And he’s certainly one of the justices I think highly of. But I guess my—to the extent that I have a hero—it’s Robert Jackson, who’s one of the great stylists on the court. He wrote beautiful opinions, and was on the right side of things, too. In Koramatsu [v. U.S.], for instance.
GARNER: And one of the great advocates before the court, as well. We actually share that admiration for Jackson, as the great stylist, both as an advocate and as a judge.
SCALIA: We quote him in one of the boxes that are in the book.
GARNER: We do. Once or twice.
SCALIA: Maybe twice.
ABAJ: And what about authors? One thing you stress in the book, and I’ll tell you as an editor, I tell my students and reporters to do: Get somebody really good that you know, take notes and see how they do it. You mention Robert Jackson; what about popular writers?
SCALIA: Let Bryan take that one. We have a lot to say about it.
GARNER: Well, I like to think about legal writers who are wonderful and my own heroes there are Charles Alan Wright, author of Federal Practice and Procedure. I love the writing of Grant Gilmore, the great Yale law professor, and Lon Fuller the Harvard philosopher of law. And I tend not to read current fiction writers. I do like people like David Foster Wallace. I think…
ABAJ: You mentioned him in the tape recorded conversations.
SCALIA: Of course, the average practitioner is not going to be reading Grant Gilmore and Charles Alan Wright and Lon Fuller. He’s going to be reading some miserable judge who issued a terribly written opinion, the only virtue of which is that it is authoritative. And that is, as we point out in the book, one reason legal writing is so turgid and generally so bad, because we are reading the worst instead of the best. What we must read is not selected on the basis of whether it’s well-written or even, for that matter, on whether it’s well-reasoned. It’s authoritative and that’s why we have to read it. You read enough of this stuff, and you begin to write that way.
One of the more important recommendations in the book is that lawyers read other stuff. Read good literature; good current literature. If you read only legal opinions, you’re going to write like legal opinions, which is not what you want to do, generally.
ABAJ: How has it been having John Roberts as the chief justice, in terms of someone who has such a long history of advocating before the court? Does he bring an element to the court as a practiced advocate that may not have been there before?
SCALIA: I don’t want to get in this discussion—into discussions of my colleagues and what not. It is good to have someone who is hot from the practice. I mean he’s been in the practice very recently and he knows what’s going on out there. Most of the rest of us are separated by some years and the practice changes. It’s good to have someone who’s current.
ABAJ: Because you do use an example in the book—I can’t remember exactly what it was—of something he did very well in terms of oral advocacy. I think it might have been returning to the lectern and using cards to find out where he is.
SCALIA: Well, he was an effective advocate, there’s no doubt about that. Which is one reason he was selected.
GARNER: Richard, I’m going to have to sign off in a moment. I might leave you with one idea, just how wonderful it was to work alongside Justice Scalia.
SCALIA: Oh, lay off it, will ya… You know you would have agreed with me more often if you really believed that.
GARNER: One thing I learned from him was how very carefully he weighs words. And how he will turn over a sentence repeatedly and often ponder a paragraph very closely for thirty minutes or longer to get every single syllable right. He really cares about whether the text not just makes the point really powerfully, but sings. We tried constantly to measure up, to make the text really sing. I can’t we always succeeded at that; but it was fascinating to watch Justice Scalia be so painstaking about every syllable that went into the book.
ABAJ: Bryan, thanks very much…
SCALIA: But maybe we succeeded. You said it was very readable. I thought it was readable. It could have been a very dull book. The topic is not inherently interesting.
ABAJ: Those books would seem to be difficult to write sometimes, because if you give examples and make them interesting.
ABAJ: Where does the ABA fit into the scheme of things these days?
SCALIA: You don’t want to ask me that.
ABAJ: Well, I want to ask you that. You may not want to answer.
SCALIA: I’ll pass.
ABAJ: Is there anything I haven’t brought up that I haven’t asked you that you might want to mention?
SCALIA: I think we’ve about covered it.
ABAJ: You see, I think you should have a better relationship with the press than you do.
SCALIA: It’s not my fault.
ABAJ: I’ll throw a personal regard: I love reading books about writing. I really do. When you do it day to day, and you’re an editor and you have to perfect things and make things interesting and readable, it’s just something you have to do.
SCALIA: That’s sort of what brought Bryan and me together, to tell you the truth. We both have that. He talked about my caring and all that, but he’s the same. He’s written all these books on words and legal usage. Both of us care about writing and about words. Listen, there aren’t that many people who are like that. You’re more the exception than the rule.