Make Your Case

Justice Antonin Scalia somehow managed to pass away on February 12, 2016 at a particularly pivotal point in the Presidential election cycle … and his death absolutely STUNNED the nation of Conservatives.  Reasonable people are finding the circumstances of his death highly suspicious — but it almost does not matter that no autopsy was performed.  In such cases, perceived conspiracies and myths resting upon doubts with any basis steadily grow and become more powerful than reality in such cases — if you are unconvinced, Google the phrase “Who really killed JFK?”

Even if Scalia was not murdered, as some sort of iconic Conservative martyr, the timing of Scalia’s death and the conspiracy theories that will necessarily accompany such a huge loss to the American republic will almost guarantee that the death of this 79-year-old man will have an outsized impact on the Presidential race, particularly the GOP nomination.

Whether you agreed with Scalia or not, the data show that he was arguably a member of the group of very most influential jurists in the history of the American republic BEFORE he passed away.  When one considers how the arc of significant jurists’ influences have continued to rise AFTER their deaths, AFTER their opinions and rulings have influenced decisions for decades that come after them … one can see that that Scalia’s arc is still ascending; it is typical for the arc of influence to climb less immediately upon leaving the Court but to regain the ascent and climb for decades following their departure.  We can expect that Scalia may well become THE truly impressive giant in a pantheon of giants.     MostWrittenAboutJustices
As with Oliver Wendell Holmes, Justice Scalia’s much larger influence on thinkers of all political leanings is not limited to Supreme Court rulings and legal opinions — he was probably one of the most influential thinkers and legal writers in the last century, not just because of his writing from the Court, but in a meta-sense or the larger context of argument and persuasion.

Consider Antonin Scalia and Bryan Garner’s 2006 text Making Your Case: The Art of Persuading Judges which directing others how to make their case.  Making a case is not just about the courtroom — it also applies to the “tribunals” we face in presenting arguments to people in business and politics, in social media and popular cultural, in life.  In that text, we have the gift of a very detailed look at 115 different things that people need think about when making their case … if you are not smart enough to buy and READ the book again and again as a reference, you owe it to your future self to at least spend a few minutes considering Scalia’s list and thinking about how it applies to the cases that you present to your audiences.

  1. Be sure that the tribunal has jurisdiction … nothing is accomplished trying to persuade someone who lacks authority or ability to decide.  In some large audiences, such as social media, your goal may be extremely modest, eg to raise doubt in a few OR warn a those who might not yet know what the majority already know OR to persaude only one person out of thousands to change his or her mind.  Modest goals are worthwhile for arguments that require modest preparation.
  2. Know your audience … listen intently and do whatever you can to learn as much as possible about the person who decides.
  3. Know your case … .become the absolute expert on the perceptions, facts, natural law, rules, regulations and precedents of your case.
  4. Know your adversary’s case … beyond empathy, constant think in terms of the best case that you could make if you were arguing the other side.
  5. Pay careful attention to the applicable standard of decision … throughout your argument, you must understand what assumptions your audience accepts, what existing precedents they recognize and what they will require as a burden of proof to change their decision.
  6. Never overstate your case. Be scrupulously accurate … inaccuracies come from lack of preparation and carelessness or deliberate misstatement. Nothing detracts more from your case than claiming more than the facts entitle you claim.
  7. If possible, lead with your strongest argument … first impressions are indelible. A logical progression lacks all persuasiveness when presented in a convoluted fashion or in reverse.
  8. If you’re the first to argue, make your positive case and then preemptively in the middle — not in the beginning or at the end … open strong with anticipatory refutation, in the middle, before closing strong — this is necessary for five reasons — you must: a) assure the audience that you have not overlooked objections, b) appear eager to quash weak objections, c) put the opposing side on the defensive, d) seize the opportunity to command the logical terrain and establish context, e) appear trustworthy and especially even-handed.
  9. If you’re arguing after your opponent, design the order of positive case and refutation to be most effective according to the nature of your opponent’s argument … when your opponent’s argument is compelling, you must quickly demolish that position in order to make space in the minds of your audience for your argument.
  10. Occupy the most defensible terrain.
  11. Yield indefensible terrain—ostentatiously!
  12. Take pains to select your best arguments. Concentrate your fire.
  13. Communicate clearly and concisely.
  14. Always start with a statement of the main issue before fully stating the facts.
  15. Appeal not just to rules but to justice and common sense.
  16. When you must rely on fairness to modify the strict application of the law, identify a jurisprudential maxim that supports you.
  17. Understand that reason is paramount with judges and that overt appeal to their emotions is resented.
  18. Assume a posture of respectful intellectual equality with the bench.
  19. Restrain your emotions. And don’t accuse.
  20. Control the semantic playing field.
  21. Close powerfully—and say explicitly what you think the court should do.
  22. Think syllogistically.
  23. Know the rules of textual interpretation.
  24. In cases controlled by governing legal texts, always begin with the words of the text to establish a major premise.
  25. Be prepared to defend your interpretation by resort to legislative history.
  26. Master the relative weight of precedents.
  27. Try to find an explicit statement of your major premise in governing or persuasive cases.
  28. Appreciate the objective of a brief.
  29. Strengthen your command of written English.
  30. Consult the applicable rules of court.
  31. Set timelines for the stages of your work.
  32. In cooperation with your opponent, prepare the Joint Appendix.
  33. Spend plenty of time simply “getting” your arguments.
  34. Outline your brief.
  35. Sit down and write. Then revise. Then revise again. Finally, revise.
  36. Know how to use and arrange the parts of a brief.
  37. Advise the court by letter of significant authority arising after you’ve filed your brief.
  38. Learn how to use, and how to respond to, amicus briefs.
  39. Value clarity above all other elements of style.
  40. Use captioned section headings.
  41. Use paragraphs intelligently; signpost your arguments.
  42. To clarify abstract concepts, give examples.
  43. Make it interesting.
  44. Banish jargon, hackneyed expressions, and needless Latin.
  45. Consider using contractions occasionally—or not.
  46. Avoid acronyms. Use the parties’ names.
  47. Don’t overuse italics; don’t use bold type except in headings; do not use underlining at all. (Note: this is the reason why underlining was chosen to be used for hyperlinks.)
  48. Describe and cite authorities with scrupulous accuracy.
  49. Cite authorities sparingly.
  50. Quote authorities more sparingly still.
  51. Swear off substantive footnotes—or not.
  52. Consider putting citations in footnotes—or not.
  53. Make the relevant text readily available to the court.
  54. Don’t spoil your product with poor typography.
  55. Appreciate the importance of oral argument, and know your objectives.
  56. Prepare yourself generally as a public speaker.
  57. Master the preferred pronunciations of English words, legal terms, and proper names.
  58. Master the use of the pause.
  59. Send up the skilled advocate most knowledgeable about the case.
  60. Avoid splitting the argument between co-counsel.
  61. Prepare assiduously.
  62. Learn the record.
  63. Learn the cases.
  64. Decide which parts of your brief you’ll cover.
  65. Be flexible.
  66. Be absolutely clear on the theory of your case.
  67. Be absolutely clear on the mandate you seek.
  68. Organize and index the materials you may need.
  69. Conduct moot courts.
  70. Watch some arguments.
  71. On the eve of argument, check your authorities.
  72. Arrive at court plenty early with everything you need.
  73. Make a good first impression. Dress appropriately and bear yourself with dignity.
  74. Seat only co-counsel at counsel table.
  75. Bear in mind that even when you’re not on your feet, you’re onstage and working.
  76. Approach the lectern unencumbered; adjust it to your height; stand erect; make eye contact.
  77. Greet the court and, if necessary, introduce yourself.
  78. Have your opener down pat.
  79. If you’re the appellant, reserve rebuttal time.
  80. Decide whether it’s worth giving the facts and history of the case.
  81. If you’re the appellant, lead with your strength.
  82. If you’re the appellee, take account of what has preceded, clear the underbrush, then go to your strength.
  83. Avoid detailed discussion of precedents.
  84. Focus quickly on crucial text, and tell the court where to find it.
  85. Don’t beat a dead horse. Don’t let a dead horse beat you.
  86. Stop promptly when you’re out of time.
  87. When you have time left, but nothing else useful to say, conclude effectively and gracefully.
  88. Take account of the special considerations applicable to rebuttal argument.
  89. Look the judges in the eye. Connect.
  90. Be conversational but not familiar.
  91. Use correct courtroom terminology.
  92. Never read an argument; never deliver it from memory except the opener and perhaps the closer.
  93. Treasure simplicity.
  94. Don’t chew your fingernails.
  95. Present your argument as truth, not as your opinion.
  96. Never speak over a judge.
  97. Never ask how much time you have left.
  98. Never (or almost never) put any other question to the court.
  99. Be cautious about humor.
  100. Don’t use visual aids unintelligently.
  101. Welcome questions.
  102. Listen carefully and, if necessary, ask for clarification.
  103. Never postpone an answer.
  104. If you don’t know, say so. And never give a categorical answer you’re unsure of.
  105. Begin with a “yes” or a “no.”
  106. Never praise a question.
  107. Willingly answer hypotheticals.
  108. After answering, transition back into your argument—smoothly, which means not necessarily at the point where you left it.
  109. Recognize friendly questions.
  110. Learn how to handle a difficult judge.
  111. Beware invited concessions.
  112. Advise the court of significant new authority.
  113. If you’re unhappy with the ruling, think about filing a motion for reconsideration.
  114. Learn from your mistakes.
  115. Plan on developing a reputation for excellence.

Confirmation Bias Drives Totalitarian Democracy

Very, very, very few people really understand their own choices.

Sales professionals, politicians and con-artists, of course KNOW this and know that people routinely rationalize really TERRIBLE, stupid, bad choices after they have made them.

Most people prefer to make choices by impulse … men might claim that they trust their gut while women might claim that they go with what their heart tells them — others use a “first thought, best thought” sort of quasi-buddhist new agey mystical argument; others claim to make faith-driven choices based on what God has told them to do … but basically it is a matter of impatience and laziness. People do not really want to think about a choice very much before they make it.

It is not just products, the most impulsive, shallow choices are probably made in the realm of relationship choices … people make especially bad choices when it comes to voting for leaders and placing ANY faith in political leaders.

Healthy, especially dynamic economies and strong cultures have traditionally been populated by strong people with strong habits and strong values who basically did not place much trust in leaders, but rather fought their own battles and only looked to leaders for a minimal level of inspiration and coordination (i.e. a leader in a strong culture is a peer who is elected to decide).

Totalitarian democracy is not true democracy, but all democracies eventually gravitate toward this geriatric, perverse form of democracy.  It is a zombie political milieu in which pathetic, entitled victims cast about looking for a lynch mob “dictator” who will emotionally incite the rest of the lynch mob into action by blaming the other side.  Elections in totalitarian democracies are vicious winner-take-all affairs; the winner gets to use the power of the State to harass and decimate opponents.

The root cause of totalitarian democracy is the weakness of the individuals; specifically, individuals become very weak and non-critical in their judgement.  Confirmation bias defines their information gathering and decision making.  Because of confirmation basis, totalitarian democracy is powered by impulsive bovine herd followers who waste a lot of time and energy trying to browbeat or bully others into following the same herd using the same emotional bovine arguments that suckered them into the herd or worse (e.g. Nazi brownshirt thug behavior).

The Law Of Success

The most sustainable Law of Success is about self governance.

Exercise extreme caution when it comes to placing any faith in someone else claiming to provide help through the governance of others … govern yourself.  Do not place your faith in those who would govern you.  Respect yourself. Do not denigrate yourself by blaming others.  Work on what you control.

First do no harm … primum non nocere … get rid of your addictions, your bad habits, your baggage and the waste in your life … stop doing the things that you already realize are harmful … primum non nocere … means that you should FIRST knock off the self-inflicted damage that is harming you.

Then you can think about the Law of Success; it is not exactly a new law by any means … it is a NATURAL law … it can never be repealed … as a natural law, it has little or nothing to do with the form of government that you live under.

Napoleon Hill was not exactly the first to articulate the law of success … he succinctly articulated a set of sixteen highly memorable lessons for THE natural law  of success that applied to the world of the “self-made” individuals of his day … people like Rockefeller, Edison, Carnegie or Ford, but the same immutable principles have always governed the law of success.

You are not required to be a success; success is a choice that you have. The population of humans is predominantly made up of victims; you are free to go along with the crowd and join the herd, but you will never be any kind of success by following the crowd.

We are all UNIQUE individuals, but the one thing we have in common is that we can CHOOSE to be a success.  What will set up apart from others who merely share memes or pay lip service to doing things that people need to do to be successful is that we can be DILIGENT about it and DO IT.

DOING IT means action and it also means choose to diligent about putting things into practice, things like CONSISTENCY, VISION and LOVE.


Consistency is one of the key ingredients to fitness, skill progress, skill maintenance, and longevity in martial arts or any activity in life.

Planning – Plan-Do-Check-Act; have SMART written objectives that are in line with your projects, plans, values and overall mission or aim in life.

Focus – constantly sort, order, eliminate, simplify, standardizepareto-ize your scope to focus on where you spend your time to get back time and resources

Courage – Never quit on yourself; be confident and courageous; stay humble to keep going for the long haul and never being permanently dismayed,

Judgment – exhibit patient self-control; avoid confirmation bias; blend judgement with good humor; own your decisions without worrying about being liked,

Frugality – Limit your consumption in order to SAVE, invest and develop new enterprises; have at least seven DIFFERENT sources of income,


People without vision are always hunkered down and playing defense, complaining about the world is getting worse and about to attack them.

Independence – be unique; do not be driven by other people’s priorities or agendas; separate importance from mere urgency

Initiative – problems are always opportunities; step up and seize the day when others falter; the most valuable time to show initiative is when it seems impossible

Innovation – Embrace failure to build a culture of innovation; harvest lessons to accelerate the process of learning lessons from others’ failures,

Perspective – read more, practically thinker with ideas, start fires with questions, provoke arguments, stimulate ideas and brainstorm

Collaboration – move beyond mere cooperation to seek ways to genuinely collaborate and to invent or create new solutions with others,


Love is most important, because God IS LOVE.  We DEFINE God as the origin of reality and all laws that govern reality, not as a matter of faith, as a matter of language and terms.  As you apply LOVE, you can begin to understand God.

Respect – Helps others as you would want to be helped; push others as you want to be pushed; aggressively implement the golden rule with dignity,

Enthusiasm –celebrate success and good fortune of others; infect others with your optimism, avoid dick measuring contests, pray for others,

Generosity – be generous and kind; help those who help others; show up earlier, work later; don’t wait for applause; do more than you are paid to do,

Networking – expand your personal network; make friends; remember names/interests; soak up lessons from others; stay in touch

Tolerance – resist negative impacts of power, comfort, affluence to be more empathetic, vigilant and shrewd; be tolerant, but do NOT be naive or stupid about who you trust. Genuine tolerance is cynical and shrewd.

Be DILIGENT about things like CONSISTENCY, VISION and LOVE … if you cannot choose where to start, start with LOVE.