How is your book, The Art of Advocacy, different from other books about written advocacy?
Most books about legal writing and legal advocacy emphasize stylistic issues, not the strategic choices that confront litigators. My book is more about legal writing than legal writing, presenting 92 substantive tips and just 12 stylistic tips. It has seven full chapters about how to build and rebut different types of arguments. No other book has that same exhaustive focus on the deeper, substantive issues involved in great advocacy. Also, I built my book bottom up: I looked for passages from briefs and motions that were especially powerful and then extrapolated lessons from those examples—even when the advice conflicted with my prior views about advocacy.
What’s the best way for readers to use your book? What can they expect to get out of it?
New lawyers (or students) may want to read the book straight through to get exposed to strategies that they’d otherwise spend years acquiring. Alternatively, they can use the book as a reference. For instance, if they need to write a summary judgment motion or a historical argument, I provide advice about that specific type of document and that specific type of argument (and many others, too). More experienced lawyers can use the book to refine their approach to advocacy and to train and mentor young lawyers—and to see how they stack up against lawyers whose work struck me as unusually strong.
How many briefs did you review to select your examples?
Thousands. But “review” is the right word (as opposed to read). I was able to disqualify lots of briefs after a sentence or two.
Who are some of your favorite advocates, and why?
I used at least five examples by Ted Olson, Charles Rothfeld, and the tandem of Walter Dellinger and Jonathan Hacker, so I guess these lawyers would top my list. The Chief Justice also appeared a number of times in my book from his days in practice. These lawyers have all mastered persuasion: their words crawl into your head and rearrange your thinking. They and their teams also work hard: they out-researched their adversaries and mastered the record.
Do any passages or briefs stand out as your favorites?
My favorite passage comes from a brief filed by a team that included D.C. Circuit nominee Patricia Millett. Those lawyers represented a man accused of selling illegal dog-fighting videos. In responding to an amicus brief filed by the Humane Society, they mined the Humane Society’s website for images depicting cruelty toward animals. The brief used these nuggets to show that no test could draw a credible line between what the criminal defendant had done and what the Humane Society did to raise money. As for whole briefs, I recommend an airtight brief filed by MoloLamken arguing that the Torture Victim Protection Act of 1991 did not apply to the Palestinian Authority. But I could name ten others that are just as great.
OK, how about one more favorite brief or lawyer then?
Sure. The battle in the Viacom v. YouTube copyright litigation was amazing—both in the Southern District of New York and on appeal at the Second Circuit. Mayer Brown, Wilson Sonsini, Jenner & Block, and Quinn Emanuel were all involved (among other firms). I think of the written advocacy in this legal battle as the legal equivalent of the epic Ali-Frazier boxing match.
What was the most rewarding part of writing this book?
Looking for treasure: I could review briefs endlessly. Studying the mysteries of persuasion is utterly captivating.
Noah Messing, The Art of Advocacy