Law Blog and Scalia, Part III: When Clients Win in Spite of Their Lawyers

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Editor’s note: This is the third of three parts of the Law Blog’s interview Thursday with Justice Scalia about his new book, “Making Your Case: The Art of Persuading Judges.” See part one here and part two here.

In the last part of the book, which deals with oral argument and how to comport yourself in court, there’s a section entitled, “Don’t chew your fingernails.”

I still regret that. That section was originally titled, “Don’t pick your nose.” I thought that was a much more attention-grabbing title. But people said, “Oh, that’s too gross, you can’t say that.” But I regret receding from that more colorful title.

If a lawyer commits some egregious behavior during oral argument is it hard to rule in his client’s favor?

You get used to it. You might have to rule for him because the law is in his favor, but you know he’s going to go back and tell his client, “Sam, we did it for you again.” Even though the fact is that this guy won in spite of his lawyer. I wish you could give two grades — who wins the case and who’s the better lawyer.

How would you grade the media these days? In the past, you’ve chided the press for its legal coverage. What’s your impression of the press now, after having been through several interviews in recent months?

I gave a talk, years ago, about how the press covers courts — this court or any court. And I didn’t think it was a mean talk at all. In fact I thought the theme was: To understand all is to forgive all. You cannot expect the general press — your blog may be a little different because it’s directed to lawyers ? to say what a case is really about. You know, reconciling Section 232(b)(3) with some other section. You’d put your readers to sleep.

Your readers want to know, did the good guy win or did the bad guy win? I analogize it to the most famous jury trial in all of literature [The Merchant of Venice], where the judge is praised: “Oh wise judge, oh beautiful judge.” But Portia was a terrible judge. I mean, you know, if you write a contract to take a pound of flesh, then obviously you take whatever blood goes with it. That’s implicit. That was terrible. But who cares! The good guy won, and the bad guy lost. And that’s basically what happens [in the press]. What we do here does not get faithfully conveyed.

Well, we’re trying.

[Laughter] I exclude you from the general condemnation.

Thanks. And I really appreciate you taking the time, Justice Scalia. I know you’re busy with end-of-term business.

Glad to do it. I enjoyed talking to you.