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This and That: By Dennis Wade

January 12, 2017

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Justice Antonin Scalia’s chair is still draped in black, a consequence of bare-knuckle 2016 politics. But, politics aside—and by any measure—Justice Scalia won the admiration, if not the votes, of his colleagues on the bench. Sparkling intelligence, wit, and unfailing courtesy (even when castigating the majority’s reasoning) marked his tenure.
As time unfolds and memories of the man himself fade, Justice Scalia’s legacy will rest with his pen, with his sterling and often startling prose. I took to reading SCOTUS decisions by beginning with Scalia’s dissent. Because it was fun.
In 2008, together with co-author Bryan Garner, Justice Scalia wrote: <strong><em>Making Your Case: The Art of Persuading Judges. </em></strong>The spine is split on my copy, many pages are dog-eared and many passages are highlighted or underscored. I invite all to read it. And here is but one small example of why:
<ol start="44">
<li><strong><em>Banish Jargon, hackneyed expressions, and needless Latin</em></strong></li>
</ol>
<strong><em>…</em></strong>Hackneyed expressions are verbal formulations that were wonderfully vivid when first used, but whose vividness, through overuse, no longer pleases but bores.  Such-and-such a case “and its progeny” is a good example.  Or the assertion that an argument is “fatally flawed” or “flies in the face of” something; that your adversary is “painting  with a broad brush”; that a claim isn’t “viable”; that the “parameters” of a rule aren’t settled; or that something is true “beyond peradventure of doubt.”  The test is: have you seen the vivid phrase a lot?  If so, odds are it’s a cliché.
The book is filled with terrific and common sense advice, all aimed at persuading a judge that your client ought to win. But even those outside the legal profession will benefit from Justice Scalia’s tips on persuasion and how judges really think. My copy doesn’t leave the confines of WCM—but it’s on Kindle for $26.83. And that’s it for <strong><em>This and That. </em></strong>If you have any comments about this post, please call or email <a href="mailto:dwade@wcmlaw.com">Dennis Wade</a>.

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