5th Circuit, Conferences / Symposia, Litigators

Bryan Garner's 3 Neglected Keys To Effective Advocacy

The noted legal writing expert offers insights for litigators who have already mastered the basics.

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writing writers deskI just got back to New York after a few days in (hot and humid) Houston, where I had a great time attending and speaking at the 2016 Judicial Conference of the Fifth Circuit. My panel on social media and the legal profession, expertly moderated by Judge Jennifer Elrod, featured Texas Supreme Court Justice Don Willett, prominent professor Eugene Volokh (of Volokh Conspiracy fame), leading litigator Chip Babcock, and yours truly.

I also enjoyed going to other sessions at the conference. One highlight: legal writing guru Bryan A. Garner’s presentation, “3 Neglected Keys to Effective Advocacy.”

Professor Garner has strong ties to the Fifth Circuit. He lives within its jurisdiction, in Dallas (where he teaches at SMU Law), and he actually clerked for the court as well, for Judge Thomas M. Reavley. Judge Reavley — who, by the way, turns 95 next month — introduced his former clerk at the conference.

Garner began his remarks with a tribute to the late Justice Antonin Scalia, his friend and co-author on two books, Making Your Case: The Art of Persuading Judges and Reading Law: The Interpretation of Legal Texts (affiliate links). Justice Scalia was a revered figure at the Fifth Circuit conference; he spoke at the conference every year, in his capacity as the court’s circuit justice, and attendees I spoke with had warm recollections of his insightful and entertaining remarks.

Professor Garner recalled how closely he and Justice Scalia worked on their two books, spending about 100 hours together for the first and 200 hours together for the second. They took an unusual approach to writing Making Your Case. Writing is typically an individual process, but for that book, they’d separately write the same sections at the same time, and then Garner would meld them together in editing.

If Garner had drafted and Justice Scalia had edited, that would have made the relationship too much like a clerk-judge relationship, which Justice Scalia didn’t want. As he told Garner early on, in a quip that generated laughs at the conference, “Bryan, you’re not my law clerk. We are equals — for purposes of this book only.” If Justice Scalia had drafted and Garner had edited, that would have created the risk of Garner being overly deferential or gentle in his editing. The approach of drafting sections on the same subjects independently, followed by melding, editing, and in-person collaboration, avoided these problems and worked well for them.

Garner then turned to his three tips for effective advocacy. He explained at the outset that he wouldn’t be talking about things like passive voice or dangling modifiers; he presumed that the conference audience, consisting largely of federal judges and distinguished lawyers, knew all the basics. Instead, he wanted to talk about what even very talented litigators, including Biglaw lawyers and Justice Department attorneys, are doing wrong.

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(By the way, Professor Garner is an excellent presenter. He speaks fluently and clearly, not too quickly, and he doesn’t rely on notes. He uses pauses well, to capture the attention of the audience, and he gestures effectively, to enhance his points without distracting. He’s also surprisingly funny. I can see why law firms and other legal employers hire him for training sessions.)

Here are his three keys:

1. Advocates should use deep issues — that is, multisentence issue statements ending in a question mark by the 75th word. The one-sentence issue should be banned.

This might diverge from what you learned in your legal writing class in law school. But it is, as Justice Scalia put it, Garner’s “greatest contribution to advocacy.”

According to Garner, the key thing in a case is to frame the issues properly. Yet many lawyers frame issues in a way that’s just a rephrasing of “who wins.”

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Here’s an example of a deep issue that Garner presented to the audience:

In Missouri, a deaf person who is arrested is entitled to a licensed, certified interpreter. Joe Pearson, a deaf person, was arrested for DWI. Police retained an unlicensed, uncertified interpreter to talk to Pearson. She interpreted Pearson’s words as refusing a breath test. Can this Court revoke Pearson’s license based on the uncertified interpretation of an uncertified interpreter?

You can see how this clearly and concisely frames the issue — and how it nudges the judge in the direction favored by the advocate. For more examples, see The Winning Brief (affiliate link).

2. Advocates should universally adopt the U.S. Solicitor General’s predominant standards for point headings.

  • Complete sentences of 15-30 words.
  • Down-style typesetting — neither initial caps nor all-caps.
  • Progression from major to minor premises, followed by points in rebuttal.

To see the SG’s standards, check out The Solicitor General’s Style Guide (affiliate link).

Point headings should be complete sentences only, per Garner. Most lawyers treat point headings as an afterthought; that’s the wrong approach. An advocate should figure out the key propositions before rather than after writing the argument section.

In addition to enhancing persuasiveness, following the SG’s standards produces briefs that are aesthetically appealing, especially in terms of the table of contents. With their ugly and inconsistent capitalization and typefaces, “the tables of contents in some briefs filed by major law firms look like ransom notes,” according to Garner.

3. Advocates should use pithy, powerful conclusions — not formulaic verbiage that begins “For the foregoing reasons” or “Wherefore, premises considered.”

Citing Aristotle, Garner noted that every piece of writing has a beginning, a middle, and an end — and the two most important parts are the beginning and the end. So why do lawyers fill the beginning and end of briefs with meaningless boilerplate?

Great judicial writers — Garner gave shout-outs here to Fifth Circuit giants like Judges Thomas Gee, Patrick Higginbotham, Alvin Rubin, and John Minor Wisdom — are masters of summarizing and distilling cases. Why are so many lawyers unwilling or unable to do the same?

As Garner joked, there seems to be a feeling among some lawyers of “don’t say anything substantive on page one, you’ll scare the judge!” Or, perhaps, “Hey judge, you’re a paid civil servant — you’re paid to read my writing, so why should I make this easy for you?”

If you want to be an effective advocate, make it easy for the judge. Use intros and conclusions that actually say something.

Bryan Garner’s tribute to his friend and co-author Antonin Scalia [ABA Journal]

Earlier: Black’s Law Dictionary: An Interview with Bryan A. Garner

David Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.

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