“When you go and argue a case, you would want to have, mentally, probably in an outline, a list of the topics you want to hit. I always thought, when I was an advocate, that what I was doing was hitting the highlights of the arguments in order to fish for the marginalia in the briefs so that we could get a discussion going. You never can tell where a discussion is going to flow, and you then want to come out of it with the next logically linked point. Well, theres no algorithm for doing that. You can certainly do it only if your argument is fluid, if you have in your mind a series of points and youre prepared to go through them in any order. Its one reason, of course, why appellate courts keep saying, Dont read your argument, because the lawyers who come to the court with prepared texts tend to view the questions as disruptions. Then they go back to their text, even if thats no longer the sense in which the argument is flowing. “ Justice Frank H Easterbrook For this quarter’s edition of ‘Scribes Journal of Legal Writing’, Bryan Garner is interviewing several appellate judges concerning legal writing and general advocacy. It’s worth a read. Below is Justice Frank H. Easterbrook’s interview.
Posted on: Tue, 26 Aug 2014 08:36:53 +0000
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