When faced with someone who sits in judgment over us, we need wisdom and skill to persuade that judge to rule in our favor. We all must appear before the “Judge of the whole earth” (Genesis 18:25). Antonin Scalia, an associate justice of the Supreme Court, has written a practical guide called, “Making Your Case: The Art of Persuading Judges.” Justice Scalia provides clear and concise principles to be an effective advocate.
An advocate’s character is important. Justice Scalia writes, “All of us are more apt to be persuaded by someone we admire than by someone we detest… Your objective in every argument, therefore, is to show yourself worthy of trust and affection. Trust is lost by dissembling or conveying false information-not just intentionally but even carelessly; by mischaracterizing precedent to suit your case; by making arguments that could appeal only to the stupid or informed; by ignoring rather than confronting whatever weighs against your case. Trust is won by fairly presenting the facts of the case and honestly characterizing the issues; by owning up to those points that cut against you and addressing them forthrightly; and by showing respect for the intelligence of your audience.”
Justice Scalia states that judges can be persuaded only when three conditions are met: (1.) They must have a clear idea what you’re asking the court to do. (2.) They must be assured that it’s within the court’s power to do it. (3.) The must conclude that what you’re asking is best-both in your case and in cases that follow.
Among the principles that Justice Scalia presents for effective argumentation are:
- Your arguments must make logical sense. Always outline your brief.
- Know your audience.
- Know your case.
- Know your adversary’s case.
- Never overstate your case. Be scrupulously accurate.
- If possible lead with the strongest argument.
- Select the most easily defensible position that favors your case.
- Don’t’ try to defend the indefensible. Draw the sting out of unpleasant facts by presenting them yourself.
- Select your best argument and concentrate your fire. Justice Scalia quotes Quintilian, who said, “We must not always burden the judge with all the arguments we have discovered since by doing so we shall at once bore him and render him less inclined to believe us.”
- Communicate clearly and concisely. An advocate’s job is to present clearly the laws and the facts favoring your side of the case. It is not the judge’s job to piece the elements together from a wordy or confusing brief or argument. Scalia states that successful arguments are marked by brevity. Courts don’t want to hear you repeat yourself. He advises advocates to compress their writing by eliminating sentences, phrases, and words that do not help.
- Appeal not just to rules but to justice and common sense.
- Reason is paramount with judges and overt appeal to their emotions is resented.
- Assume a posture of respectful intellectual equality with the judge. “An advocate should be instructive without being condescending, respectful without being obsequious and forceful without being obnoxious.”
- Restrain your emotions and don’t accuse.
- Close powerfully and say explicitly what you think the court should do.
Justice Scalia’s advice is a powerful tool to improve the art of communication. Communication is about trust and that is why honesty and fairness are important characteristics for a judge and for anyone who wants to persuade a judge. When Moses was chosen to be an advocate for the Hebrews, before Pharaoh, he protested to God: “I am not a man of words…my speech is difficult and my tongue is difficult.” (Exodus 4:10) God responded: “Who gave man a mouth…Is it not I, God? Now go, and I will be your mouth.” (4:11-12).
Moses, a man who was not a “talker” became a powerful and effective advocate because of humility. He got out of the way of his arguments. Moses was an effective advocate because he was not in love with his own words and arguments. Moses did not let ego dilute or distort his message. He absorbed higher wisdom and became a channel to convey knowledge and truth greater than himself. These principles, when applied, can help us to become more effective advocates before those who judge us.
