Scalia and Garner: You Are What You Wear

[WSJ Law Blog]

Mr. Chief Justice, and may it please the Court. It’s an old joke, but when a man argues against two beautiful ladies like this, they’re going to have the last word. — former state attorney general for Texas, prefacing his oral argument in Roe v. Wade



Remember Warren Zier, the first member of the Law Blog Ascot Society? Zier, a state prosecutor in Wisconsin, was called out by Judge William Sosnay for wearing a red ascot to court. Sosnay said Zier’s sartorial choice bordered on “contempt.” Or how about Todd Paris, the lawyer who was slapped with a $300 fine by a North Carolina judge for reading Maxim magazine (with “a female topless model” on the cover) during a court session?

Zier and Paris might have avoided these run-ins by reading Justice Scalia and Bryan Garner’s new book, Making Your Case: The Art of Persuading Judges. In the fourth and final section of the book — “Oral Argument — one theme runs throughout: be likable. “Show yourself worthy of trust and affection,” they write. Demonstrate to the court that you are not mean-spirited.

Under the heading, “Make a good first impression. Dress appropriately and bear yourself with dignity,” they quote Shakespeare: “Apparel oft proclaims the man.” They advise men to ditch “long hair in a ponytail (and unless it’s part of your special cultural heritage, we don’t recommend this coiffure if advocacy before elderly judges is your day job), wear a dark suit. . . .the same for women — a dark conservative suit.” As for reading materials, they say, avoid newspapers or “other materials not directly related to your case.”

How about humor? Under the heading, “Be cautious about humor,” Scalia and Garner cite the quote up above, an unfortunate wisecrack by Texas’s assistant AG, uttered before taking the podium to make his argument in Roe v. Wade. (He lost.) Humor has it’s place, they concede, but here are the problems: “(1) only someone with a genuinely good sense of humor, and a feel for when humor is appropriate, can pull it off; (2) many of us who think we have those qualities don’t; and (3) some judges have no sense of humor.”

LB readers, what is likability, when it comes to oral advocacy? Does all this stuff matter as much as the authors say it does? Should it?