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.
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