Justice Scalia to lawyers: Read more, write better

U.S. Supreme Court Justice Antonin Scalia has helped make the high court a lively place over the past 25 years, and he had some advice for Richmond-area lawyers Thursday on how to argue their cases.

"Use good English" was one of the top tips offered by Scalia in a 30-minute talk to more than 500 lawyers and judges gathered at the Bar Association of the City of Richmond's 20th annual Bench-Bar Conference luncheon.

He prompted a big round of laughter when he asked, "Why are lawyers such lousy writers? The answer is: What you read from the time you entered law school is mainly judicial opinions. …

"If that's your only diet of literature, you're going to be a terrible writer."

Scalia suggested that lawyers writing briefs should read good novels or good magazine stories. "As you read, so will you write," he said.

Scalia, 75, was appointed by President Ronald Reagan and joined the court in September 1986. He is the longest-serving justice on the current court.

He has an undergraduate degree from Georgetown University and the University of Fribourg in Switzerland, and he is a graduate of Harvard Law School. Among other things, he was in private practice in Ohio from 1961 to 1967 and a professor of law at the University of Virginia from 1967 to 1971.

He was assistant U.S. attorney general for the Office of Legal Counsel from 1974 to 1977 and appointed to the U.S. Court of Appeals for the District of Columbia Circuit in 1982. A New Jersey native, he is married and has nine children.

Scalia opened his remarks at the Thursday event, put together by a consortium of local bar associations, by saying it was good to be back in Richmond.

"I consider myself a Virginian. I really didn't sink any roots anywhere until I taught at the University of Virginia, which is the real Virginia. You know, where I live now, is Nawthern Virginia," he said.

Back to the effective use of English, Scalia advised not to use banal legalese. "The test is, if you talk that way at a cocktail party, would people look at you funny? And they would if you used … 'aforesaid' and all of that garbage."

Among his pet peeves are phrases such as " 'fatally flawed.' Nothing is 'wrong' anymore. Nothing is 'flawed.' It is always 'fatally flawed.' Get rid of it. It's hackneyed." It also isn't a good idea to use "empower" or "impact" as verbs around Scalia.

Other tips include:

• "Don't be playing on heartstrings. Don't give a jury argument to a judge because if he's a good judge, he is not swayed by emotion and if he is a bad judge who is swayed by emotions, he doesn't want to look like a bad judge," he said. "Reason is paramount."

• "Be scrupulously accurate." Judges on appeals court presume you know more about the case being argued than they do. "Once it appears to me that you know less about the case than I do, you have lost a whole lot," he warned. That happens, he said, if you are inaccurate or exaggerate.

• In oral arguments, make your big point first. "Why? Because you may never get off it," he said. "In my court, where you go depends on the questions you get and you may get so many questions on your first point, which is not your major point, you never get to your big point. You don't want that to happen."

• The manner of your presentation is important. "I want a respectful manner, but neither an obsequiousness manner nor — this is even worse — a professorial manner," Scalia said. "If you're a good lawyer, speak like a good lawyer."

• "The worst mistake advocates make is not to welcome questions from the bench, to take them as interruptions," he said. Scalia, who is known to ask questions, said he can sometimes see lawyers arguing cases thinking, " 'This damn fool's wasting my time. If he didn't ask me these questions, I could be regurgitating my brief.' "

"The worst thing in the world is to have a cold bench," he said. "The only time you know for sure that you're not wasting your time is when you're answering a question. So you should welcome questions."

• He suggested that lawyers recognize friendly questions from judges. "There's nothing worse than you trying to help out counsel and he's fiercely resisting you. … They're not always out to get you. Sometimes they're trying to help."