Feb. 8, 2014

Justice Scalia speaks at USF

Supreme Court Justice Antonin Scalia delivered the keynote address at University of San Francisco School of Law's 2014 Law Review Symposium on Jan. 31. He discussed trial tactics with Bryan A. Garner, a legal lexicographer who has co-written two books with the justice. Scalia said the first rule of trial work is to know one's audience, beginning with the judge. "Some law firms keep books on judges," the justice said. "Find out everything you can about the judge you're going to be arguing before." Scalia said oral argument is about answering questions that could harm your case, not pretending they don't exist. He said a lawyer should know a case well enough to anticipate questions about weaknesses in his or her argument and be sure to actually respond to them, not just reiterate points that have already been made. "You could always read from your brief," Garner joked, causing laughter in the audience. "Not in front of my court, anyway," responded Scalia, who last month chastised a lawyer for reading from his notes during oral argument. The justice added that oral argument is an opportunity to focus on the strongest points of a position, which sometimes have to be moved down in the text of a written brief for functional or narrative reasons. Conversely, he said, attorneys should not hesitate to give up on a smaller point in order to curry favor for the long run. He said fighting on points that seem ridiculous is a good way to get on the court's nerves, when instead it should be used as an opportunity to display how reasonable the attorney is are. "Yield indefensible terrain — ostentatiously," he advised. Scalia said the state of legal writing is in bad shape, primarily because lawyers spend all of their time reading judicial opinions. "I guarantee if you read only judicial opinions you will be a lousy writer," he said. "Read The Atlantic, read the great novelists." In terms of avoiding overly obtuse legal language, he added, "The test is, if you used this phrase at a cocktail party, would people look at you funny?" — Joshua Sebold