Fordham Law Review
Volume 12 | Issue 1
Article 1
1943
The Argument of an Appeal in the Court of
Appeals
John T. Loughran
Associate Judge of the Court of Appeals of the State of New York
Recommended Citation
John T. Loughran, The Argument of an Appeal in the Court of Appeals, 12 Fordham L. Rev. 1 (1943).
Available at: http://ir.lawnet.fordham.edu/flr/vol12/iss1/1
This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for
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FORDHAM
LAW REVIEW
VOLUME XII
1943
302 BROADWAY
NEW YORK
1943
Copyright 1943
By Fordham University
Printed in U. S, A.
The Heffernan Press
Worcester, Mass., U. S. A.
TABLE OF LEADING ARTICLES-AUTHORS
KEEFE, EUGENE J. Personal Tort Liability of Administrative Officials ........
KENNEDY, WALTER B. Law Reviews "As Usual"? .........................
KENNEDY, WALTER
B.
The Schneiderman Case-Some Legal Aspects ........
The Argument of an Appeal in the Court of Appeals ....
LOUGHRAN, JOHN T.
'LYNCH, JOSEPH B. Legal Expenses as Deductions from Income ............
SCHMIDT, GODFREY Guaranteed Wages Under New York State Minimum Wage
Legislation ........................................................
TnIASHEFF, NICHOLAS S. The Schneiderman Case-Its Political Aspects
WILLE, FRANK J. Government Ownership of Patents ......................
.
150
50
231
1
8
252
209
105
TABLE OF LEADING ARTICLES-TITLES
GOVERNMENT OWNERSHIP OF PATENTS. Frank J. Wille ....................
GUARANTEED WAGES UNDER NEW YoRx STATE MINIMUM WAGE LEGISLATION,
Godfrey Schmidt ..................................................
105
252
LAW REvIEws "As UsuAL"?i
Walter B. Kennedy .........................
50
LEGAL EXPENSES AS DEDUCTIONS FROM INCOME. Joseph B. Lynch ..........
8
PERSONAL TORT LIABI.ITY OF ADMINISTRATIVE OFFICIALS. Eugene J. Keefe ...
130
THE ARGUMENT OF AN APPEAL IN THE COURT oF-APPEALS. John T. Lou'ghran
1
THE SCHNEIDERMAN CASE-ITS POLITICAL ASPECTS. Nicholas E. Timasheff 209
THE SCHNEIDERMAN CASE-SoME LEGAL ASPECTS. Walter B. Kennedy ..... . 231
TABLE OF BOOK REVIEWS-AUTHORS
CLARKSON AND WARREN: The Law of Property in Shakespeare and the Eliza-
bethan Drama.
Franklin F. Russell .................................
102
Walter B. Kennedy ........................
94
HAYS: City Lawyer, a book note .........................................
103
INBAU: Lie Detection and Criminal Interrogation. John A. Larson ..........
307
LERNER: The Mind and Faith of Justice Holmes. Revi. John G. Ford, S.J.....
303
MONTGOMERY: Federal Taxation on Estates, Trusts and Gifts. Harold H. Meyers
99
POWELL: Corporate Taxation in New York. Sol Charles Levine ............
101
WRIGHT: The Growth of American Constitutional Law. Walter B. Kennedy .. 310
FRANK: If Men Were Angels.
INDEX--DIGEST
ADMINISTRATIVE LAW
Invqtigation of administrative tribunals
170-175
in New York
Liability of administrative officers as to
ministerial and quasi-judicial functions
132145
Personal tort liability of administrative
officials
130-148
Respondeat superior doctrine appfied to
liability of administrative officers
146-148
APPEAL AND ERROR
See Practice
Argument of an appeal in the Court of
Appeals
1-7
ATTORNEY AND CLIENT
Duty of attorney to render gratuitous
legal services to indigent defendants on
order of court
175-178
Hays: City Lawyer
103-104
BAILMENT
Liability of garage keeper for unauthorized act of servant
178-182
FORDHAM LAW REVIEW
BANKRUPTCY
Rights of assignee of contract against
63-66
trustee in bankruptcy
Secured creditors' dividends in liquidation proceedings
77-80
COMMUNISM
Compared with constitutionalism in
America
, 232-234
Force and violence as necessary factors
219-230
in
The political aspects of
209-230
CONFLICT OF LAWS
Recognition of foreign divorce decrees of
foreign state
150-153
Scope of substantive rights as dependent
182-185
upon procedural remedies
The Williams Case
150-153
CONSPIRACY
Alleged conspifacy for failure to complete sale through real estate broker
277
LAW
CONSTITUTIONAL
See Communism
Lerner: The Mind and Faith of Justice
303-307
Holmes
The Schneiderman Case-its political
209-230
aspects
The Schneiderman Case-some legal
aspects
231-251
245
The test for citizenship
Wright: The Growth of American Constitutional Law
310
CONTRACTS
Rights of assignee of contract against
trustee in bankruptcy
63-66
Rights of beneficiaries of United States
Savings Bonds
301
CORPORATIONS
Purchase and sale of stocks under § 16
(b) of Securities Exchange Act 1934
283
CREDITORS RIGHTS
Secured creditors' dividends in liquidation proceedings
77-80
CRIMINAL LAW
Whether the federal bank robbery statute
applies to felonies defined by a- state
66-69
statute
DEBTOR
Secured creditors' dividends in liquidation proceedings
77-80
DOMESTIC RELATIONS
Recognition of foreign divorce decree
of foreign state
150-153
EVIDENCE
Inbau: Lie Detection and Criminal Interrogation
307
[Vol. 12
Presumptions of law and fact-burden
of proof
185-189
Rehabilitation of a witness by prior
287
consistent statements
FEDERAL PRACTICE
Erie R. R. v. Tompkins-conflict between state and federal law on immunity of service from process 91-93INDEMNITY
General contractor and subcontractorconstruction of indemnity contract
70-73
INSURANCE
See War
Changes in insurance provisions in 1942
amendment to Sailors' and Soldiers'
167-168
Civil Relief Act
Subrogation of insurer to conditional
289
vendor's rights against vendee
JUDGES
Portrait of two judges
JURISPRUDENCE
See Legal Philosophy
299
LABOR LAW
Duty of employer to pay minimum
weekly wage regardless of length of
252-275
employment
Guaranteed wages under New York
State Minimum Wage Legislation
252-275
History of the weekly minimum wage
252-275
Power of the state to compel a* mini252-275
mum weekly wage
LANDLORD AND TENANT
Effect of internment of enemy alien on
performance of lease
190-193
LEGAL HISTORY
54-61
Law in our time
50-61
Law Reviews "as usual"
51-53
Natural Law in early America
LEGAL PHILOSOPHY
94-99
Frank: If Men Were Angels
53-61
Law in our time
Lerner: The Mind and Faith of Justice
Holmes
303
51-53
Natural Law in early America
57-61
Rebirth of idealism
LEGISLATION
See Statutes
LIBEL AND SLANDER
See Torts
MILITARY LAW
Soldiers' and Sailors' Civil Relief Act
19431
INDEX TO VOLUME XII
Amendment of 1942
Soldiers' and Sailors' Wills
i53-170,1
80-88 1
PATENTS
Effect of recapture of patents. by the
government
105-129
Right of the government to issue licenses
following seizure of patents from
aliens
105-129
PRACTICE
The argument of an appeal in the Court
of Appeals
1-7
PROPERTY
See Patents
Clarkson, Warren: Law of Property in
Shakespeare and the Elizabethan
Drama
102-103
Effect of Soldiers' and Sailors' Civil Relief Act, Amendment of 1942 on conveyances of realty titles
159-166
Testamentary character of United States
Savings Bonds
301
SOLDIERS AND SAILORS
Soldiers' and Sailors' Civil Relief Act
Amendment of 1942
153-170
STATUTES
Federal
Bank Robbery Statute of 1934 66-69
Fair Labor Standard Act of 1938 252
Internal Revenue Code of 1936
198
Naturalization Act of 1906
235
Securities Exchange Act of 1934 283
Soldiers' and Sailors' Civil Relief Act
Amendments of 1942
153-170
Trading with the Enemy Act of 1917
293
Massachusetts
Massachusetts General Law (Ter. Ed.
1931) c. 209, § 6
184
New York
Debtor and Creditor Law, Art. 2a
77-80
Workmen's Compensation Law § 10
203
Decedent Estate Law § 16
80-88
Surrogate Court Act § 141
80-88
Ohio
Ohio Guest Statute § 6308-6 G.C. 205
Uniform
Uniform Fraudulent Conveyance Act
77-80
SUBROGATION
Subrogation of insurer to conditional
vendor's rights against vendee
289
Subrogation-priority of surety who has
discharged labor and material claims
over assignee
73-77
TAXATION
Cancellation of indebtedness-gift of income
198-202
Legal expenses as deductions from income
849
Montgomery: Federal Taxes on Estates,
Trusts and Gifts, 1941
99-100
Period of deductibility of legal expenses
23
Powell: Corporate Taxation in New
York
101-102
Public policy as it affects the deductibility of legal expenses
13
TORTS
Libel and slander-judicial privilegepublication of opinion in unofficial
reports
193-197
Personal tort liability of administrative
officials
130-148
Ride sharing and guest staLutes 205-207
Torts of charitable institutions
89-91
When does an injury arise "out of and
in the course of the employment"?
203-205
Who is an invitee?
93-94
WAR
Corporation domiciled in enemy occupied territory
293
Soldiers' and Sailors' Civil Relief Act
Amendments of 1942 ,
153-170
Soldiers' and sailors' wills
80-88
WILLS
Interpretation of words "all moneys"
Soldiers' and sailors' wills
202-203
80-88
TABLE OF CASES
A. Giurlani & Bros. v. Commissioner
10
Adams v. Stevens and Gagger ......
176
Adkins v. Children's Hospital 266, 268, 271
Antin v. Union High School District 146
Antonio v. Long Island Railroad Co.
93
Application of Roossin ............
166
Arrow Iron Works v. Greene ...... 75, 76
Associates Discount Corporation v.
Armstrong .....................
169
Bergman v. Buffalo Drydock Co.
Birge-Forbes Co. v. Heye .........
Bragdon v. Dinsmore .............
Brinilson v. Chicago & N. W. R. Co.
Burnet v. Sanford & Brooks Co. 199,
204
298
206
93
200
Cashman v. Meriden Hospital ......
Castorina v. Rosen ...............
Century
Cement
Manufacturing
Company, Inc. v. Fiore ..........
Chase National Bank of New York v
Katsivi Onishi ...............
190,
Continental Jewelry Co. v. Minsky
Cooper v. O'Connor ...........
138,
Cortland Savings Bank v. Ivory ....
Coster v. Coster ..................
90
178
73
191
155
144
169
183
Daimler Co., Ltd. v. C6ntinental
Tyre and Rubber Co ...........
297
Deatsch v. Fairfield ...............
141
Decker v. Fowler ...............
301
Deputy v. du Pont ..........
10, 39, 42
Devoe v. New York State Railways 204
Deyo v. Adams ................
301, 302
Deyo, In re ......................
207
Dillon v. Rockaway Beach Hospital
& Dispensary ...................
91
Donovan
v.
Moore-McCormack
Lines, Inc ...................
287, 288
Dougherty v. Hall . ..............
206
Douglas v. Kenn-Well Contracting
Co., Matter of .................
204
Drewery v. Onassis ...............
293
Dudar v. Milef Realty Corp.
71
Dunbar v. Faut .................. 141
Duncan v. Hutchinson ...........
205
Ebert v. Poston ................
160
Employers' Liability Assurance Corp.
v. Post & McCord, Inc ...........
72
Erie Railroad Co. v. Tompkins .... 91, 92
Ethier v. Audette ................
207
Ex parte Grossman ...............
92
Feoffees of Heriot's Hospital v. Ross
89
Field v. Charmette Knitted Fabrics
Co., Matter of ..............
204, 205
Fields v. Western Millers Mutual
Fire Insurance Co ...............
289
Fireman's Fund Ins. Co. v. Schreiber 180
Fisher v. Levy ...................
147
Flint v. Stone Tracy Co .......
10, 11, 12
Foss v. Commissioner ............
16, 17
Francis v. Branson ...............
196
Franklin Washington Trust Co. v.
Beltram .......................
303
Gable v. Sisters of St. Francis ......
90
General Outdoor Advertising Co.,
Inc. v. Helvering ................
17
Georgetown College v. Hughes .... 89, 90
Gilluly v. Hawkins ...............
165
Great, Barington Savings Bank v.
Brown ........................
165
Haddock v. Haddock ...........
150-153
Holroyd v. Marshall ..............
63,64
Hamburger v. Cornell University ..
91
Hardie v. Bryson .................
91
Head v. Morton ................
207
Helvering v. American Chicle Co. 200, 202
Helvering v. American Dental Co....
198
Helvering v. Enright ..............
23
Higgins v. Smith .................
11
Houston v. State .................
139
Houston Belt & Terminal Ry. Co.
v. Rogers ......................
94
Hudspeth v. Melville ..............
67
Hudspeth v. Tornello .............
69
Hughes v. Wamsutta Mills ........ 191
Hunter v. Baldwin ................
207
Indermaur v. Dames ..............
International Association of Machinists v. E. C. Stearns & Co .......
Itzkowitz, In re ..................
94
302
156
Johannessen v. United States ... 239, 241
John T. Furlong ..................
9
Kansas v. Colorado .... ..........
Karlinski's Estate, In re ...........
Kendall v. United States ..........
Keviczky v. Lbrber ...............
112
302
135
277
Lampert v. Siemons, Matter of ....
205
Lanfersweiler v. Richmond ........ 303
Larmore v. Crown Point Iron Works
Co. ...........................
94
Laski v. State ..................
75, 76
Lewis v. Terminal R. R. Ass'n of
St. Louis ......................
19 94
Long v. Ansell ...................
92
Lowe v. Conroy ..................
139
Marbury v. Madison .............
310
Ma'y Lincoln Candies, Inc. v. Dep't
of Labor ...............
261, 266, 275
19431
INDEX TO VOLUME XII
Masaletti v. Fitzeroy ..............
Mason v. Bogg ...................
Maxwell Land-Grant Case ...... 239,
Magar v. Hammond ..............
McCarthy v. Pieret ...............
McDonald v. Mass. General Hospital
McGrinder v. Sullivan, Matter of 204,
Meiers v. Koch Brewery ..........
Merrill v. National Bank of Jacksonville ............. .............
Miller v. Fairley .................
Miller v. Horton .................
Modern Industrial Bank v. Zaentz
156,
Moreas v. Ferry ..................
Morton v. Savannah Hospital ....
Murray v. Brancato ..............
National Outdoor Advertising
reau, Inc. v. Helvering .........
Nemoitin v. Berger ...............
206'
79
242
93
301
89
205
94
Speyer v. Denver ................
79
205
139
157
207
90
193
Bu17, 20
207
O'Connor v. Boulder Colorado Sani-"
90
tarium Ass'n ...................
Old Folks' and Orphan Children's'
Home v. Roberts ...............
90
206
Olefsky v. Ludwig ................
Palsgraf v. Long Island R. R. Co.
Pamia, The ......................
Parker v. Brown .................
Pearson v. Zehr ..................
People v. Culkin .................
People v. Remington ..............
Perrin v. Morgan .............
202,
Perry v. House of Refuge ..........
Pluckett/v. Palthorpe .............
186
Seigle's Estate, In re ..............
Scarsdale National Bank & Trust Co.
v. U. S. Fidelity & Guaranty Co. 73, 76
Schmidt & Webb v. Blood & Green 182'
Schneiderman v. United States .. 209-251
Schriever, Matter of ..............
203
203
Smith v. Burch ................
282
Smolowe v. Delendo Corporation ...
93
297
274
139
177
79
203
89
207
Riggs v. Del Drago ............... 303
Riordan v. Zube ................. 165
Robb v. Hackley ................. 288
Rochester Distilling Co. v. Rasey 64, 65
Rockmore v. Lehman .............
63
Ruckenbrod v. Mullins .........
175, 177
206
Ruel v. Langlier .................
26
Sanford Cotton Mills, Inc .........
Santamaria & Eamport & Holt Line,
Ltd. ...........................
94
13, 14, 15
Sarah Backer ................
Seaver v. Ransom ............... 302
Securities and Exchange Commission
285
v. Chenery Corp ................
Sorrells v. United States ..........
Sovfracht (V/O) v. Van Udens
Scheepvaart en Agentuur Maatschappij (N. V. Gebr.) ....... 296,
Squier v. American Telephone and
Telegraph Co ...................
Stanley's. Estate, In re ............
Stanelevitz v. City of New York ...
State ex rel Anseth v. District Court
of Koochiching County ..........
Stevens v. Black ..................
Strickfaden v. Green Creek Highway
District .....................
Sutton v. N. Y. C. & H. R. R R . Co.
Sweeney v. Young .............
143,
144
92
297
124
303
133
205
139
146
94
144
Textile Mills Security Corporation v.
Commissioner ..................
10
Thompson-Starrett Co. v. Otis Elevator Co. .................... 7,1, 72
U. S. v. Kirby Lumber Co.........
200
United States v. Dauphin Deposit
303
Trust Co . ......................
United States v. Dubiier ..........
127
67
United States v. Jerome ...........
United States v. Macintosh
243, 244, 245, 246
United States v. Schneiderman ... 209-251
W . R. Hervey ....................
9
Walters v. Rao Electrical Equipment
70
Co . ...........................
Warren v. United States ...........
302
90
Welch v. Frisbie Memorial Hospital
10
Welch v. Helvering ...............
West v. West .....................
203
West Coast Hotel Company v. Par-,
rish .............
252, 262, 266, 311
Zaiac, Matter of ................
Zwick v. Goldberg ................
81, 86
184
FORDHAM LAW REVIEW
VOLUME XII
JANUARY, 1943
NUMBER 1
THE ARGUMENT OF AN APPEAL IN THE COURT OF
APPEALS
JOHN T. LOUGHRANt
J
WANT to begin with a word or two about the admirably happy discourse upon the present topic that was presented two years ago in
this room. You cannot have forgotten the picture of the fisherman to
which I owe the part I shall now attempt to perform. On the theory
that such an argument is a conscious and deliberate angling for 'the
judicial mind, you were asked to fancy certain advantages that might
ensue "if the fish himself could be induced to give his views on the most
effective methods of approach."'
As I play this part of the fish in the picture, I take for granted your
understanding that I speak for myself alone, and only from my own
point of view, and that, in the nature of things, there is no judicial dogma
on this subject. With your leave, then, I shall candidly do my best to
turn the picture 'round and let you look at it from the back. As a preliminary, something must be said respecting methods of the work of
appellate tribunals in general.
A few years ago, I was told by an Australian judge that an appeal in
his court was argued in this fashion: After the facts were stated, counsel
on either side was permitted to cite three cases and no more in support
of each of his points. The reports of these cases were then and there
examined on the bench, after which all hands discussed the issues in
t
Associate Judge of the Court of Appeals of the State of New York.
Address delivered before the Association of the Bar of the City of New York, November 12, 1942.
1. Davis, The Argument of an Appeal (1940) 26 A. B. A. J. 895; a lecture delivered
by John W. Davis, before the Association of the Bar of the City of New York, October
22, 1940: "And in the second place a discourse on the argument of an appeal would come
with superior force from a Judge who is in his judicial person the target and the trier
of the argument than from a random archer like myself. Or, supposing fishes had the
gift of speech, who would listen to a fisherman's weary discourse on fly-casting . . .and
all the other tiresome stuff that fishermen talk about, if the fish himself could be induced
to give his views on the most effective methods of approach. For after all it is the fish
that the angler is after and all his recondite learning is but the hopeful means to that end."
FORDIIAM LAW REVIEW
[Vol. 12
the light of the cited authorities until a decision was reached. Such an
oral analysis of all the difficulties would probably be generally accepted
as the perfect method of arguing any appeal. My Australian friend,
however, told me also that so detailed a dissection often took two days
or more to do, and that consequently the process was almost too much,
even for a tribunal which heard but fifteen appeals at a session of. four
Weeks.
Of course, no routine of that extended order would be possible in
our affairs. During the eight years I have been in our Court, six hundred
or more appeals have been disposed of every year. Sometimes we take
in as many as a dozen cases on the order calendar in one afternoon.
The weekly grist runs on the average anywhere between twenty-five and
forty cases. The conditions of our work were once described by Chief
Ju4ge Crane with characteristic directness. I borrow from him these
words:
"The majority of us dine together every day of the session. 'Every Tuesday,
Wednesday and Thursday we are in consultation from half-past nine in the
morning until one, followed by the court session from two until six. In the
evening, it has been customary for members of the court to work in their
chambers in the courthouse until late at night ....
By tradition the consulta-
tions of the court are an outstanding feature of main importance to the work.
They are quite formal. The judge to whom a case has fallen is expected to
report fully upon all questions involved, and while making his report it is the
duty of the Chief Judge to see that he is not interrupted, no matter how long
he may take. When he is through, the matter then passes to the next asso'ciate in rank who is accorded like treatment."'2
In his lectures on the Supreme Court of the United States, Chief
Justice Hughes sets forth the different practice employed in that tribunal.
He says:
"At the conference, it is the practice for the Chief Justice, unless he desires
otherwise, to be the first to state his opinion with respect to the case to be
decided; he gives his opinion first and votes last. After a decision has been
reached, the Chief Justice assigns the case for opinion to one of the members
of the Court that is, of course, to one of the majority, if there is a division
and the Chief Justice is a member of the majority. If he is in a minority,
the
3
senior Associate Justice in the majority assigns the case for opinion."
As to whether either of these divisions of labor is superior to the
other, I shall have nothing to say. My point about the matter is simply
2. Minute of the Court of Appeals, 278 N. Y. V, VI (1938).
3.
HUGHES, THE SuPRBm- COURT OF TmHUNITED STATES (1928)
58-59.
1943]
THE ARGUMENT OF AN APPEAL
this: There is nothing in the idea that a case in the Court of Appeals
is likely to fall to one judge rather than to another merely because of
the nature of the controversy. The assignment of cases among its judges
does not depend at all on any supposed expertness of some member of
the bench in a given field, common as the contrary impression may have
been. The medium of assignment, as Judge Crane said, is an affair of
rotation and nothing else.
But whatever the merits of either of the practices described, there
has been in some appellate courts another practice which has been roundly condemned-that is to say, the practice of assigning a record on
appeal to one judge to write an opinion without previous consultation by
the whole court. "This course," said Judge John F. Dillon, "ought to
be forbidden, peremptorily forbidden by statute."4 There is no such
practice in the Court of Appeals. On the contrary, every appeal-and
every motion for that matter-is in the first instance freely and openly
discussed in the conferences of the court until all are satisfied. Except
in emergencies, our opinions are written and circulated among us when
the court is in recess. During a recess we also exchange written reports
upon all cases that were left undecided at the end of the conferences
of the last session. These opinions and reports are the first things taken
up for discussion at the start of the following session and are then voted
upon. There will also be at that time a number of motions to be got
out of the way before the current calendar becomes the order of the day
in our conferences. Meantime, the oral arguments have been going on
each afternoon in the court room with the result that the first case
argued at any session does not come up at the consultation table earlier
than the following week. Moreover, this gap constantly widens as the
session runs along, for in the conference debates-as Judge Crane put
it--"every man is afforded full opportunity for self-expression and the
indulgence of his own peculiar method of approach or attack." 5
The bearing of all this upon questions as to the effectiveness of any
argument, oral or written, cannot be left out of account, if the advocate
would in imagination change places with the court, as I assume he has
already been persuaded to do by a cardinal rule of his own. With so
great a volume of work to be done in time so limited, it must be clear
that the judges approach every case with a strong feeling of the necessity for prompt and exact grasp of the issues to be determined at the
consultation table. Note this one point, if no other: the chief end-nay,
4.
5.
DILLON, THE LAWS AND JuRISPRuDENCE or ENGLAND AND AimmRICA (1895)
Minute of the Court of Appeals, 278 N. Y. V, VI (1938).
192.
FORDIJAM LAW REVIEW
[Vol. 12
the sole end-of every argument of counsel is to equip the judges for
the work of their conferences.
Next I take this question: Do the judges ordinarily look into a case
in advance of the oral argument? At the beginning of my apprenticeship eight years ago, the kindly gentleman who at that time was clerk
of the court tried to convince me of the benefits of getting a head start
by examining over the summer the records and briefs in the cases that
were filed for the autumn session. Laudable as that advice may have
been, it was not suited to me. You may decide for yourselves upon the
validity of my reasons, which were these: It must be to any advocate
a disenchanting thing to have to work out the pattern of his oral argument before an auditor who gives evidence of having already gone below
the surface of the thing for himself. Again, such antecedent diligence
of an auditor might make it necessary that some pre-acquired notions be
rubbed out of his mind before anything else could well be put in, inasmuch as nothing is more important to the average man than his own
little discoveries. Go back for a moment at this point, if you will, to
the figure of the angler and consider his trouble in this last predicament.
See how he is now forced to follow, not only his own purpose, but also
some unanticipated notions of the fish as well. Behold the change in his
ordered plan, as, in a single cast, he now launches two or even three
flies instead of one. I pass to another question.
Can anybody read all the records in so many cases within the available time? The whole record is read scrupulously in cases of murder
in the first degree, and usually when there is exercise of the jurisdiction
to review new findings of the Appellate Division. In many other situations a great part of the record is nothing to the purpose. One or two
commonplace examples will be enough to make this sufficiently plain.
You would probably be surprised to find how many are the negligence
cases in which the story of the accident will be but a minor fraction
of a record which bulks big in medical expert testimony and other items
of proof of damage which are no longer in the case, since the facts have
now been finally determined. So the mass of a record in a condemnation
proceeding may at this last stage present no more than the single question whether the correct measure of damage was applied.
But however many the cases in which the review may thus be limited
-whether the pages to be read are few or many-a judge must at all
events bring with him to the conference an accurate and ready knowledge of all matters of fact that are relevant to the points open to discussion. If he is industrious, he will, perforce, gather technique and
perhaps wisdom in this indispensable business of getting into and out
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THE ARGUMENT OF AN APPEAL
of a record. Be that as it may, every word of an argument which helps
him on his way in that direction will fall pleasantly on his ears. Hence
the primary importance to the court that the advocate have sure knowledge of every nook and corner of his record. It sometimes happens that
a judge will disclose some misapprehension respecting the facts you have
stated. Be ready then with chapter and verse to put him back on the
track-for his own good, I mean-and to your profit also, because you
may lose much of his interest should you fail him in such a moment.
I pass now to something of almost equal importance.
The main facts are the pivot on which most cases turn, and it is not
in the power of man to state them too clearly. Unless the appeal is before the court by its own leave, the judges will probably know very
little about the controversy before the argument begins. Let the main
facts be adequately brought forward and they will vitalize the whole
discussion as it proceeds thereafter. Let the main facts be clouded by a
slipshod statement of them and the rest of the argument is as good as
lost. In truth, it is a personal confession that the charm of a lucid
fact presentation seems one of the best arguments of all.
I have been speaking of the statement of the facts themselves; the
argument of questions of fact is quite a different thing. You often hear
it said from the bench that the court will not hear extended discussion
of questions of fact. I have already given you the reason: the work at
the consultation table is always a week or more behind the arguments
of counsel. During this hiatus, usually twenty-five or more other cases
have been argued and inevitably the subtleties of the oral argumentation of a case a week old will, to a great extent, have been forgotten.
This is the reason why the court calls out, "Give us the high-lights,"
when for example, the argument is whether there is any evidence to
support a finding of fact. The record alone can in that instance supply
the answer and whether or not that record constitutes any evidence
is a matter of individual interpretation. Yet it is remarkable how frequently the time and attention of the court are taken up by lengthy
arguments on this very point, which always involves on one side the
proving of a negative. The development of such arguments, as I believe,
is more wisely made the office of the printed brief.
And now what of questions from the bench during argument? Not
so long ago, Lord Justice Atkin of England delivered himself on this
subject in forthright fashion:
"There are times in our courts when it is rather difficult to know whether
the argument is proceeding or whether the Court is delivering a series of interlocutory judgments. I remember one case, when I was a junior at the Bar,
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which excited great interest, a case as to whether you could obtain an interlocutory injunction against an alleged libel. The Court sat, and, the argument
having proceeded all day, about a quarter to four the presiding judge said
to counsel: 'I suppose, Mr. Cozens-Hardy you have about concluded your
argument?' He said, 'My Lord, I have not begun yet. The Court has taken
the whole time.' ,,
This seems to me to go to the heart of the problem. Questions from the
bench are well enough so long as the oral argument is not too much disturbed. In my personal opinion, such questions should be directed solely
to the speedy and precise exposition of the thing to be decided.
A moment ago I remarked that nothing was more important to the
average man than his own little discoveries. Now judges are average
men and, if in the course of your argument there should occur to one
of them some theory which would do you no good, it is better you should
know it through a question from him than that it should remain a masked
battery for your possible undoing. When you are faced by such an
unexpected question, it is far more to the judge's satisfaction either that
you meet it head-on or frankly concede your present unreadiness to
answer. In the latter case, do not hesitate to ask for time for the submission of some further memorandum; never risk the weakening of a
well-constructed argument by attempting an out of hand response to
a question raising an undigested difficulty.
Tonight I have said a good deal about oral argument and the thought
may arise whether an exhaustive brief really requires the aid of oral
presentation. Again the answer must be a personal one. I know that I
experience a feeling of distinct disappointment when on the call of a
case that falls to me, I hear the clerk say, "Submitted". When the briefs
in a submitted case are picked up at the end of a day that has told
heavily they are dead things. Under those circumstances, it is hard for
a judge not to feel a diminution of his ardor. The printed word of the
ablest advocate, to me at least, falls far short of the same arguments
when heard face to face through his living voice.
The phrasing of my feeling in this aspect is difficult; but you may
take my word for it, oral address may breed an intimacy between advocate apd judge that can never come out of a printed page. Even an
expression lacking in grace and of no great profundity often conveys a
hidden appeal to the feelings of the court. I shall not easily forget the
counsel who, just before our tired closing hour, half-complainingly but
with grave earnestness said this: "Now, your Honors, before I sit down,
6.
Atkin, Appeal in English Law (1927) 3 CAmB. L. J. 1, 8-9.
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I want to say a word about a brief that has been filed against us by an
amicus curiae. I have to talk about that brief because, if the man who
wrote it is a friend of this court, he certainly is no friend of mine." He
instantly had the attention of the whole court.
I remember another who argued an appeal in a capital case. Every
transition of his thought was introduced by the phrase, "Now, gentlemen, I expect to show". After he had repeated this phrase a dozen times,
he pulled himself up and humbly said to the court: "I beg your Honors'
pardon. This is my first time in this court. You see I am used to talking to juries." Chief Judge Crane thereupon broke in: "Why did you
tell us that? We would never have known you were not here before.
You talk like an old-timer, and, if you want to call us gentlemen, it's
all right with us., I hope we are." After that lawyer had concluded, the
Chief Judge said to him: "When you come here again may you be fortunate enough to make as good an argument as you did today; and the
best part of it is that you were yourself."
Simple incidents like these, and all I have said before, are meant to
convey the truth that the advocate is indeed at all times the instructor
of the court. Professor James Bradley Thayer, in the prefatory note to
his Cases on Evidence, said, and on this note I close: "In law, as in other
things, every teacher has his own methods, determined by his personal
gifts or lack of them,-methods as incommunicable as his temperament,
his looks or his manners." On that basis, I give you as a final word
this blunt but kindly admonition of Chief Judge Pound to a young
lawyer on his first appearance in our Court: "Don't forget that you are
talking to seven ordinary men like yourself."