Legal Research

Among other tips that come out of the ABA Journal's interview with Justice Antonin Scalia and Bryan Garner, authors of the new book Making Your Case: the Art of Persuading Judges, is this one:

Scalia: ....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?s 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.

Other topics discussed include brevity of briefs, knowing your audience, oral arguments, use of humor, and awareness of when a judge is trying to help you out.  ABA Journal also has an excerpt from the book with some writing tips (n.b. Scalia and Garner acknowledge that their advice often differs from that of other authorities), as well as a transcript of the complete interview in text and audio. Whatever you think of Scalia, if the interview is anything to go by, the book will be an enlightening and enjoyable read.

The library's copy of Scalia and Garner's book is on its way!