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You don't have to like Justice Scalia to like his book.
Perhaps an appellate brief that you wrote would have been perfect if only the judge had read it. The lesson you learned, hopefully, was that there is no guarantee that a judge will read your brief. The lesson you can learn from "Making Your Case" is how to write so that the judges will read what you wrote - preferably before your oral argument. Writing in a quite candid, lucid and entertaining style, Scalia and Garner serve up tips that even the most experienced lawyers can learn from. If you find yourself approaching the court's word limit, for example, you may be minimizing the chances of having your brief read, as judges really do favor brevity. How do you write for a court that is notoriously dismissive of higher court precedents? How do you best respond to a judge who asks whether you would be content with a remand? These and other critical questions are addressed simply yet insightfully. If your legal education stressed the IRAC approach (Issue, Rule, Application, Conclusion), Scalia and Garner take you a step further by stressing a syllogistic approach. Even if you have already been exposed to all the best ideas about persuading appellate judges, you are still likely to gain much rom reading "Making Your Case" because the authors organize all those ideas in a way that makes them much easier to remember and keep them in mind as you prepare your written and oral arguments. Justice Scalia calls his approach to legal reasoning and argument "textualism," which I understand to mean that his decisions are driven by the language of the law and of the case. My impression from reading many of his decisions is that he is often driven by ideology, so I can't quite square his book with his decisions. I also question the book's fundamental statement that the overriding objective of a brief is to make the court's job easier, as I prefer to write primarily for the purpose of winning the case. My criticisms of "Making Your Case" are miniscule compared to those thrown at it by Richard Posner. But although I find Judge Posner's decisions generally more fair than those of Justice Scalia, I prefer the clarity of Justice Scalia's writing - especially when he teams up with Bryan Garmer. Judge Posner notwithstanding, Scalia and Garner have put together a gem that is likely to prove invaluable for law students as well as for trial and appellate lawyers who are still interested in improving their game. If you fall into either category, buy this book, read it two or three times, and then keep it handy as a reference. It should help you make your case.
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Reviewed in the United States on December 18, 2012
