How to Win an Argument (at the U.S. Supreme Court, or Anywhere Else): A Primer by Litigator Neal Katyal

Do you like being right? Of course, every­one does. Are you suc­cess­ful at con­vinc­ing oth­ers? That’s a tougher one. We may polite­ly dis­agree, avoid, or scream bloody mur­der at each oth­er, but what­ev­er our con­flict style, no one is born, and few are raised, know­ing how to per­suade.

Per­sua­sion does not mean coer­cion, deceit, or manip­u­la­tion, the tac­tics of con artists, under­hand­ed sales­per­sons, or stereo­typ­i­cal­ly untrust­wor­thy lawyers….

Per­sua­sion is about shift­ing oth­ers’ point of view, respect­ful­ly and char­i­ta­bly, through the use of evi­dence and argu­ment, eth­i­cal appeals, mov­ing sto­ries, and “faith in the pow­er of your ideas,” as Neal Katyal explains in his TED pre­sen­ta­tion above, “How to Win an Argu­ment (at the U.S. Supreme Court, or any­where).”

Katyal’s job as a Supreme Court lit­i­ga­tor makes him an author­i­ty on this sub­ject. It may also dis­tract you with thoughts about the cur­rent Court pow­er strug­gle. Try to put those thoughts aside. In places where rea­son, evi­dence, and ethics have pur­chase, Katyal’s advice can pay div­i­dends in your quest to win oth­ers over.

In his first case before the Court a “hand­ful of years” after the 9/11 attacks, he rep­re­sent­ed Osama bin Laden’s dri­ver in a suit press­ing to rec­og­nize Gene­va Con­ven­tion rules in the war on ter­ror and to rule Guan­tanamo uncon­sti­tu­tion­al. His oppo­nent, the Solic­i­tor Gen­er­al of the U.S., had argued 35 cas­es before the court; “I wasn’t even 35 years old,” Katyal says. He won the case, and he’ll tell you how.

His most impor­tant les­son? Win­ning argu­ments isn’t about being right. It isn’t about believ­ing real­ly, real­ly hard that you’re right. Per­sua­sion is not about con­fi­dence, Katyal insists. It’s about empa­thy. Oral argu­ments in the court­room (which judges could just as well read in tran­script form) show us as much, he says.

When his legal exper­tise was not help­ing in prepa­ra­tion for the big tri­al, Katyal felt des­per­ate and hired an act­ing coach, who trained him in such tech­niques as hold­ing hands while mak­ing his argu­ments. What? Yes, that’s exact­ly what Katyal said. But he did it, and it worked.

Hold­ing hands with the Jus­tices isn’t an option in court, but Katyal found oth­er ways to remind him­self to stay close to what mat­tered, wear­ing acces­sories his par­ents had giv­en him, for exam­ple, and writ­ing his children’s names on a legal pad: “That’s why I’m doing this, for them. To leave the coun­try bet­ter than I found it.”

Once he had estab­lished his pri­vate rea­sons for car­ing, he was ready to present his pub­lic rea­sons. As the old say­ing goes, “peo­ple don’t care how much you know, until they know how much you care.” The facts absolute­ly mat­ter, yet the bur­den of show­ing how and why facts mat­ter falls to the per­suad­er, whose own pas­sion, integri­ty, com­mit­ment, etc. will go a long way toward mak­ing an audi­ence recep­tive.

This advice applies in any sit­u­a­tion, but if you’re won­der­ing how to move Katyal’s advice online.… well, maybe the ulti­mate les­son here is that we’re at our most per­sua­sive when we’re close enough—physically or virtually—to take some­body’s hand.…

Relat­ed Con­tent:

Read An Illus­trat­ed Book of Bad Argu­ments: A Fun Primer on How to Strength­en, Not Weak­en, Your Argu­ments

Lit­er­ary The­o­rist Stan­ley Fish Offers a Free Course on Rhetoric, or the Pow­er of Argu­ments

How to Argue With Kind­ness and Care: 4 Rules from Philoso­pher Daniel Den­nett

Josh Jones is a writer and musi­cian based in Durham, NC. Fol­low him at @jdmagness

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