ADDRESS OF AUSTEN G. FOX

(of the New York Bar)

MR. PRICE, FELLOW MEMBERS OF THE BAR: I must confess at the outset that when Brother Conboy drafted me I looked around for some Board of Exemption, but he assured me that he would provide a court for the correction of my errors on the spot; so you can take an instant appeal from me to the supreme authority on my left (Former Judges Scott and Shearn). Now that I am here I have really very great doubt whether I can be of any use to anybody. To try to do so is the only excuse we have, I think, for talking to you at all on this subject. The more I think of it the more there keeps coming to my mind the interview that the Irish advocate, Curran, had with his Irish priest whom he overtook on the road one day. He said, "Father, you know I have been walking behind you and I have been wishing that you were St. Peter." The priest looked at him quizzically for a moment and said, "Why?" He said, "Father, because if you were you would have the keys of heaven, and you could let me in." Back came this reply from the priest: "Curran, my lad, it would be better for you if I had the keys of the other place, for then I could let you out."

Our committee's choice of the subject is suggestive. They call our subject not "The Conduct of Cases on Appeal," but "Appellate Work," and the title embodies much of what anyone can say of real value on the subject.

There may be among our fellow-members of the bar those who can dash off a dictation that will seem complete and persuasive and do it with so little apparent effort that the process will hardly seem to resemble what

you and I understand by the word "work." A dictated brief can seldom be the equivalent of a written brief in terseness, clearness and force, and we may well wonder, I think, whether the great arguments of the leaders of days gone by did not owe much of their strength to the concentration which is so apt to be lacking in dictation. A justice of the Supreme Court of the United States, in speaking of some of the leaders of the bar, said of B. R. Curtis, that in the latter years of his life he never failed to put his full force on the one point, the decision of which concluded the controversy. And the father of the late William Allen Butler, B. F. Butler, was known in his day as the "one-point lawyer." Napoleon said, "There are many good generals in Europe, but they see too many things at once; as for me, I try to crush the enemy's main body, confident that secondary matters will settle themselves," a sharp warning to us all against the delusion that by gaining a victory on secondary matters we shall in some way or other, gain a victory over the enemy's main body. But there is a greater guide at hand for us lawyers. "In learning extensively and discussing minutely what is learned, the object of the superior man,' said the Chinese philosopher Mencius, "is that he may set forth in brief what is essential." Here, then, is our goalto set forth in brief what is essential. But we must not forget that in determining what is essential, we must include not only that which is essentially favourable to our side of the case, but that which to the court may seem essential to the whole case. When we shall have determined what is essential, we shall have less difficulty with the rest of it,-setting it forth in brief-because the essential almost always is brief. How, then, shall we determine what is essential? We must all confess I think -at least I must confess-that when all was over and we had lost, we were forced to admit that if the court was right, we had mistaken the secondary for the essential. How did we come to confuse the two?

If we could answer that question, what a future we should have before us! But, in looking over my own cases, I have often wondered whether the confusion had not been due in part, at least, to that curse of modern practice— haste in preparation, which, while it denies to us the opportunity to let our minds play at leisure over the whole subject and discern the essential, has permitted our wandering glance to see too many things at once. Timidity may lead us to waste our strength upon the secondary and thus weaken our grasp upon the essential, when a boldness born of resolute adherence to the essential would have sent us to our goal.

In a case which I was about to argue many years ago in the Court of Appeals, I submitted the proof of my brief to the late F. N. Bangs for his criticism—one of the greatest lawyers I have known. I had rested my attack on the judgment below principally upon one proposition, but I had come to regard with much favour what I had written upon an outlying question. Mr. Bangs read the brief and said, "Fox, I think your main point is sound. Why weaken it by associating with it a point of secondary importance and doubtful validity?" The result proved the value of his advice. When we have decided what is essential we try to set it forth in brief. We try to make a statement that is clear and short. We must not forget that it must be very dull work reading brief after brief into which the writers have put no life, and if we tried oftener than I fear we do to make a readable story of the case, should we not further our end? A confused statement is always dull and dullness bores in court, or at the dinner-table. The horrid necessity of breaking up our narrative in briefs with brackets and folio marks prevents the story-teller from doing his best. Who would dream of reading with pleasure an essay broken up by such things? Perhaps the day will come when we shall be permitted to put our references and folios in the margins.

When we have determined what is essential and have tried to set it forth in brief, and come to the citation of cases in support of our proposition, what are the pitfalls that beset the careless counsel? I remember a case in which I was engaged for the respondent in the Appellate Division and the counsel for the appellant was one of the leaders of the bar. He cited in his brief a decision of that court which he contended was in direct support of his appeal, and he was right. The decision was so recent that it occurred to me to ascertain whether there had been an appeal. The presentation of the opinion reversing the judgment upon which my friend had relied, showed the necessity of following out to the end any case before relying upon it as conclusive.

Of course, there is no substitute for the examination of the books, and he serves his client best who does that work himself. Many a day have I seen the late James C. Carter, the indefatigable, at work in our library doing for himself work which sometimes it has been deemed safe to entrust to others. Your clerk may bring you authorities which are useful-many of them-but how about the cases, the application of which he fails to perceive?

When we have decided what is essential, tried to set it forth in a brief story of the case, and have gone through our citations in support of our proposition, what remains but the oral argument? Mr. Justice Shearn will speak upon that subject exhaustively and with authority, but it seems to be in line with my portion of the subject tonight to say a word or two about it.

What useful function can we serve by oral argument? Can we really do more than be sure that we state our position clearly, that the court comprehends our contention, and that we create an impression favourable to our client? The cases on appeal are not decided in the glow of oral argument, but in the cool light of conference around the consultation-table.

A question put to counsel and frankly answered may

sometimes save the day. I remember in the first case which I argued in the Court of Appeals-I hesitate to say that this case is reported so far back as in 53 New York Reports-I had gone not much further than to state my case and was approaching the proposition on which I relied to sustain the judgment, filled with perturbation at finding myself before the court of last resort at the mature age of twenty-three, when I was startled by Judge Martin Grover saying-he did not even know my name"Young man, do you stand up for this proposition?" He stated my case precisely. Well, some good spirit must have guided me, for I heard myself saying, “Most assuredly!" And the guiding spirit must have continued its ministrations, for I had the good luck to sit down at once. The court had my point. What more could I ask?

There never can be any conflict, gentlemen of the bar, and those of you who are about to become members of the bar-there can never be any question of a conflict between our devotion to the court and our devotion to our client. He serves his client best who helps the court the best, and he helps the court the best who helps the court the most, so that, devotion to helping the court is the highest expression of devotion to our client.

Ours is a great function. It cannot be performed by demagogues, or pettifoggers. We serve, gentlemen, in a noble temple. In the words of Webster on the death of Story: "He who clears its foundations, strengthens its pillars, adorns its entablatures, or contributes to raise its august dome still higher in the skies, connects himself, in name, and fame, and character, with that which is and must be as durable as the frame of human society."

And now, gentlemen, let me apply to this talk on Appellate Work what I try to remember in oral argument. You will find it expressed in the title which Henry van Dyke has given to a series of delightful essays: "The Gentle Art of Leaving Off."