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finally brought up, I think I may say I know that it will be impossible for the judges who have it under consideration to disconnect the argument from the person of the lawyer. They will connect the person and his argument with the case in such a way that the impressions made upon their minds at the time of the argument will be revived and brought up before them again. I believe in oral argument. Instead of being discouraged it ought to be encouraged. I think a lecture or paper might be prepared, and very appropriately delivered before the Association, on the subject of oral argument. We win our verdicts by oral argument. We win our motions for new trials by oral argument. All the way through the trial, if we want to impress anybody we do it orally. With that exception, I am in hearty sympathy with this paper, and, I think, it is worthy of the highest commendation, and for one, I shall take it as a lesson to myself, as a model to be followed in the future.
MR. Bond: I agree with the author of the paper that the brief outlined is a model brief, and usually an appellant can follow that outline, but there is a difficulty in preparing a brief for the appellee. In the United States Appellate Courts, under the law, the party appealing must file his statements of errors or reasons of appeal with his prayer of appeal so that they may go up with the record. Take it in the Supreme Court of the United States; the appellant has to assign the errors of his case and make a brief substantially on the plan outlined by his honor, Judge Cartwright; but he has to file that only six days before the case is called for hearing. That gives the opposite party no opportunity to
He would have to make a very bad brief, because he does not know what points the appellant is going to make. For the appellant, as I say, the form is a very excellent one; but it cannot be followed successfully by the attorney for the appellee. He must prepare his brief by such light as he has, and as he guesses as to how the law will be presented and the points of error claimed by the other side. That is why he should have some chance at an oral argument.
MR. HILL: My observation has been that the faults complained of are just as often found in the briefs of great lawyers as those of less capacity. The bar generally, no matter what the experience of the individual, need the teachings of just such papers as has been read here to direct their attention to
the proper form for briefs and printed arguments. In illustrating the fact that the want of care in the preparation of briefs is not due to inexperience. I wish to tell the Association a little incident I witnessed three years ago in the Supreme Court at Washington. There was a great case on trial -an equity case in which there were four or five different parties, representing a good many hundreds of thousands of dollars. Each party was represented by two counsel, so that there were eight or ten counsel. Among those counsel were some of the most eminent lawyers in the land-names that would be perfectly familiar to every gentleman present. The court gave the case three days for consideration. I was expecting to try the next case on the docket and had to wait around and listen.
After listening most of the first day, I came to the conclusion that I must be an exceedingly stupid man, for I had been unable to get any idea of the case that was on trial. The next morning I was in court again, hoping that I might be able to get hold of the point they were all fighting about. They went on through the whole of that day, and I was about as much in the dark as ever. On the third day, soon after the court commenced its session at 12 o'clock, a very prominent lawyer was on the floor when Mr. Justice Bradley interrupted him. “Mr. Blank”—I will not mention his name“Mr. Blank,” said he, "will you please inform me what this case is about?" Mr. "Blank” was taken by surprise and appeared in doubt for a moment. “And,” said Mr. Justice Bradley, “whom do you represent?" (Laughter). What do you claim, and on what ground do you claim it?" The lawyer replied briefly. “And whom does Mr. Blank represent?” said Justice Bradley, naming the lawyer who had last spoken a very eminent lawyer whose name would be perfectly familiar to you. The gentleman from Boston turned to the lawyer at his side, and he answered the serious question. "And whom do you represent?" Mr. Justice Bradley inquired of the third gentleman; and when he had thus questioned all of the lawyers who had spoken in the case, Judge Bradley said: “You have now been talking over two days in this case, and until now I have not had the slightest idea what any of you gentlemen were talking about. At that point Mr. Justice Field spoke up and said: “This is the first light I have had on this case. I have been trying to understand
it, and I had about made up my mind that it is impossible to understand it." Mr. Chief Justice Fuller said he had had no idea of the case until now. I said to a couple of young lawyers who were watching the proceedings that this was an object lesson to them; that they should learn from this the importance of stating their cases to the court with clearness. The model brief which Judge Cartwright has given us would seem to have been appropriate in such a case. tlemen had followed the form recommended here, the Supreme Court would not have had the difficulty they found in that
If the gen
MR. SHERMAN: I was one of those concerned in the passage of the law creating the Appellate Court. We all remember that at that time the Supreme Court was simply overwhelmed, being three or four years behind the docket. The judges of that court had been compelled to discourage oral argument in order to discharge their duty. But they did promise within my hearing that if the Legislature would create an Appellate Court and relieve them of the tremendous pressure of business, they would again encourage oral argument. I think they have not kept their promise.
PRESIDENT HARKER: I think some portions of Judge Cartwright's paper have been misinterpreted by some of the members. As I understood his paper, and in harmony with the views I have heard him express privately (because we have been associated together in one of the courts of review for five years), proper oral argument is not discouraged. I know it is not in the Second District. But where that oral argument is a mere repetition and statement of the written argument, it is discouraged.
MR. Scott: That may be true as to the Second District, but it certainly is not true of the Appellate Court in Chicago. That court not only does not encourage oral argument, but it frankly discourages it. A prominent member of the bar asked leave to file a reply brief. Judge Gary, who was presiding, said: “We will take the case on call, and
you may have leave to file your brief hereafter.” “But, your honor," said the attorney, “I wish to argue this case orally.” “That won't be necessary," His Honor replied. “But I think it is necessary,” said the lawyer. “Oh, no; just file your
briefs," said Judge Gary," "we never consider the oral argument anyway." (Laughter). I have witnessed some things in the Supreme Court that would indicate that they were not fond of oral argumet. I have seen judges of the Supreme Court go to sleep in the midst of what I thought was a pretty good argument-it was not one of my own. (Laughter). I have heard it stated that the judges always so arranged that there should be one judge on the bench during the oral argument-not the same judge, but one of them.
MR. BRADWELL: Now, as I understand it, Judge Cartwright did not say anything against oral argument. He simply does not believe that lawyers should occupy the time of the court saying just exactly the same thing over and over again that they have in their printed brief. If they have anything new to say, I understand him to be in favor of hearing it.
JUDGE CARTWRIGHT: I stated before reading the paper that it was derived solely from observation and experience as a practicing attorney in making arguments, and from observation in the Appellate Court in the Second district. I apprehend that the same feeling exists there as in the First district and in the Supreme Court with reference to oral argument; that all the court has any reason to expect in the oral argument is that council will reiterate the written argument and look the court in the eye (laughter); and that is the advantage, as I understand Mr. Gross, to be derived from oral argument. It is the personal presence of the attorney which Mr. Gross desires; the opportunity to look at the judges and see that they are looking at him, as they are apt to do while thinking about something else. (Laughter). The courts do discourage oral argument because they have no reason to expect anything but reiteration. The comparison between the jury and the court is not applicable, because in the case of the jury you get action at once, while in the case of the court the decision is made in the conference room weeks afterward. Before a jury you can repeat and emphasize all you please. The jury cannot get away, and you force them into understanding the case.
With all the powers of persuasion at your command, you make them come around to your view, and you get a decision immediately. About all that is remembered in the conference room is that the attorney made
a good argument or a poor one. It is five or six weeks after the oral argument.
As to what Mr. Sherman says with reference to summarizing he does not distinguish between the brief and the argument. The brief is the statement of the case, and the citation of authorities. As we said in the paper, there is no fixed form for argument, and if, at the close of the argument, counsel chooses to summarize his argument he may do so. With reference to the inability of the appellee to make a brief, it may be said that he has ten days after the filing of the appellant's brief to reply to it. If he is not able to make any reply under the rules of the court, I do not know what he is to do; but if he is able to make a reply he is able to make a brief.
MR. BRADWELL: I just now understand it. Judge Gross says he wants to look the judges right straight into the eyein other words, he wants to hypnotize the court. (Laughter).
MR. SHERMAN: It was not my intention to criticise Judge Cartwright's paper, but to criticise the action of the Supreme and some other courts in reference to oral argument. But as Judge Cartwright has now expressed himself more explicitly as to oral argument, I do wish to criticise his position. I never yet saw a court so learned that they could not be instructed and greatly helped by a strong, clear presentation of the case by an oral argument, and if any judge is so constituted that, after having the case presented by a good lawyera statement of the facts and of the law applicable to those facts-he can forget it, I must say I think that judge not a model judge. It is simply impossible in the nature of things that any man sitting to hear and decide an important case, and hearing the facts and the law stated to him by a good lawyer who understands his case, should fail to be benefitted by that statement. He may forget the benefit, he may not consciously recognize it, but it is there all the same.
JUDGE CARTWRIGHT: I am afraid I have been misunderstood if it is thought that I am opposed to oral argument. I say the general custom is simply to reiterate or restate the written argument, and the reason that courts discourage oral argument is that they have reason to expect nothing else. If they had any reason to expect any different argument, they would be very glad to hear it.