Scalia and Garner: ‘Yield Indefensible Terrain — Ostentatiously’

[WSJ Law Blog]

How do effective advocates persuade courts to decide cases in favor of their clients? That’s the pressing question for which Justice Antonin Scalia and Bryan Garner provide a 206-page answer in their new book, Making Your Case: The Art of Persuading Judges, which hit stores yesterday. In the mold of Sun Tzu’s “Art of War,” the book’s 115 sections of advice arm attorneys for the front lines of advocacy.

CBS’s Lesley Stahl, interviewing Scalia on “60 Minutes,” called the book “breezy.” Indeed, reading the book last night, the Law Blog found itself absorbed (”engrossed” may be too strong a word) in Scalia and Garner’s prose. This stuff could apply to lawyers, but it could also apply to anyone engaged in the art of persuasion, we thought.

So, over the next few days, we’ll be rolling out what we think are the authors’ more interesting or provocative points.

For starters: One of the things that immediately jumped out at us is the authors’ advice to acknowledge weakness in arguments right up front.

Under the heading: “Yield indefensible terrain — ostentatiously,” they write: “Rarely will all the points, both of fact and law, be in your favor. Openly acknowledge the ones that are against you. In fact, if you’re the appellant, run forth to meet the obvious ones.”

On the topic, the authors quote Frederick Bernays Wiener: “Grasp your nettles firmly. No matter how unfavorable the facts are, they will hurt you more if the court first learns them from your opponent. . . .Draw the sting of unpleasant facts by presenting them yourself.”

LB Readers, we know this advice is widely taught in law school, but it strikes us now as advice that might be easier to dispense than follow — especially when you’ve got a client paying tens of thousands for, say, an appellate brief. Is this, in actuality, something you litigators out there try to do?