February’s Book of the Month is Marking Your Case: The Art of Persuading Judges by Antonin Scalia, Associate Justice of the Supreme Court of the United States from 1986 until his death in 2016, and Bryan Garner, American lawyer, lexicographer, and teacher who is also the editor of Black’s Law Dictionary. The book purports to answer the age-old question “How do effective advocates persuade courts to decide cases in favor of their clients?”
The book is divided into four parts: i. General Principals of Argumentation; ii. Legal Reasoning; iii. Briefing; and iv. Oral Argument. The last two parts are very specific to the United States, making it an interesting read for those of us in other parts of the world who have a special interest in how US lawyers work, but with very little to offer in terms of usable advice in more international settings. The first three parts, however, are a gem for legal practitioners regardless of where they practice law. The book as a whole is a must-read for linguists and translators working into or out of the American legal system.
I read the book both through the lens of a legal practitioner as well as that of a translator and found myself highlighting great legal and linguistic advice almost on every page. The introduction begins with what appears to be an overstatement of the obvious. Yet it’s a simple truth many practitioners seem to forget sometimes:
“Judges can be persuaded only when three conditions are met:
(1) They must have a clear idea of what you’re asking the court to do.
(2) The must be assured that it’s within the court’s power to do it.
(3) After hearing the reasons for doing what you are asking, and the reasons for doing other things or doing nothing at all, they must conclude that what you’re asking is best—both in your case and in cases that will follow.”
Many of my Civil Law colleagues in Latin America will object to the last part about convincing the judge that what you’re asking is best even in future cases; they will base their objection on the fact that there is no stare decisis doctrine in such countries. But that objection undermines the great lengths many courts are going to throughout Latin America to institutionally strengthen the rule of law in our recovering democracies. More and more judges want to be convinced that their decisions are applicable to future similar cases, putting increasing pressure on lawyers to up their game.
Throughout the book, the influence of Aristotle on both authors is evident. Aristotle is cited well and often in the General Principles of Argumentation part of the book, but his influence is everywhere. The authors are, with good reason, obvious philosophy buffs—and they succeeded in illustrating from beginning to end how to put their theory into practice. Thus, making it a highly recommendable book.