PRESIDENT'S ANNUAL ADDRESS. that his remedy is at law. His client must pay up and begin a new suit. Some of our brethren contend the distinction should be abolished, and advocate a practice code applicable to all civil actions. I do not think so radical a change advisable. After an examination of the practice codes in several of the States of the Union, and inquiry of prominent lawyers who have practiced under them, I am satisfied that our system of pleading, embodying the wisdom of the sages of the common law who evolved it, toned by our liberal statute of amendments, and provisions of the practice act adopted from time to time as the exigencies of an advancing age have required, is the most methodical and desirable of any yet known. The law should be so amended, however, as to allow a party who has begun his case on the wrong side of the docket to transfer it without delay, or so as to allow the court under such circumstances to grant equitable relief when sitting as a court of law, and legal relief when sitting as a court of equity. These, gentlemen, are some of the changes which would do much to shorten the route of the litigant and relieve our congested dockets. There are others more radical. I have discussed these because I feel that their accomplishment is practicable. I know I have said some things that will provoke hostile discussion. I hope no member will feel at all backward 'in controverting the views here set forth, or in expressing fully the reasons for the faith that is in him. Free expression of opinion is courted, not only upon the views contained in this paper, but upon those contained in others that may be read during the session. Your executive committee desire that such discussion be made a special feature of this meeting. JAMES H. CARTWRIGHT. SPECIAL ADDRESS. THE BRIEFS AND ARGUMENT THAT HELP THE COURT. JAMES H. CARTWRIGHT, of Oregon. BRIEFS. Briefs on appeal or writ of error are designed to aid the court in understanding the arguments of counsel and considering the questions raised, by furnishing a statement of the case together with the propositions for which counsel will contend in argument, and the authorities cited to sustain them. They also furnish notice to counsel on the other side as to such propositions and authorities, so that he may be prepared to meet them The rules of the Supreme and Appellate Courts in this State require such briefs from the parties in all cases, whether the arguments are printed or oral, or both, and they must precede oral argument and accompany printed argument. Parties have the privilege of filing with their printed briefs full written or printed arguments in support of the points and authorities contained in their briefs, but such arguments are independent of the briefs, and supply only the place of a speech or argument. There is a frequent misapprehension of the rules in this regard, and counsel often proceed at once with the printed argument without anything in the nature of a brief, and sometimes without even a statement of the form of the action or its subject. In such cases the propositions contended for are developed singly as the argument proceeds; errors claimed to have occurred are distributed through the argument, and the authorities are scattered here and there. The purpose of an argument is to elaborate the points set down in the brief, and by reasoning and illustration apply them to the case under discussion, and the argument does not meet the rule in regard to briefs. It was long ago held that a printed argument would not suffice unless there was connected with it a separate and distinct statement in the nature and fulfilling the requisites of a brief. It will be readily seen that a SPECIAL ADDRESS. judge, with the brief in hand, can examine the authorities with less labor and more satisfaction than if compelled to pick them out here and there from many pages of argument. And in the latter situation some may be overlooked unless the court, in reading the argument, shall do work equivalent to making a brief for the party by making memoranda of the points and authorities cited. Authorities may be properly repeated, commented on and used for illustration in the argument, but they should be collected in the brief. The lawyer who only knows in a general way that he has had a lawsuit and has been badly used by somebody, may still consume much ink and paper in a promiscuous overhauling of the case, and complaining that whatever was done or refused was error. It will help him no less than the court if he will first arrange and classify his complaints and set them down in a brief, referring them to rules of law. The first essential to an understanding of the questions to be argued and considered is a knowledge of the case, and the brief of appellant or plaintiff in error should commence with a statement, supplying the necessary information. The statement should be short and clear, giving the form of the action, the nature of the pleadings so far as to show what issues were made by them between the parties, and any question subject to review which arose on the pleadings. If there was a trial, the court should be informed what questions of fact were contested, how the issues made in the case were decided, and what the judgment was. After these things have been made clear, counsel should state what is complained of, and how the errors claimed proved prejudicial and aided or produced an erroneous conclusion. The brief will then be completed by setting down the points made and the authorities in support of them. In arranging the points it is desirable that counsel should begin at the beginning, and proceed by regular steps through the case. The arguments on the points made will of course follow the same order as the brief, and if properly arranged they will give to the questions involved an orderly development in the minds of the court. Of course it is necessary that counsel should definitely understand the propositions involved in the case, and not wait until he writes his reply brief to learn them, or to gain a full apprehension of them when he presents a petition for rehearing. It is the province and duty of counsel to search for and present to the court the authorities sustaining the points contended for. JAMES H. CARTWRIGHT. Generally speaking, no authority should be so presented by citing it, unless it has been examined by counsel and found to be in point. If it should happen that an authority which is believed to be pertinent is not accessible, that fact should be stated. It is of course expected by counsel to get the benefit, by his citations, of the reasoning of the law-writers and judges, and the weight due to the opinion of learned men in the decision of his case. That being his object, he should see to it that the instances of conditions of fact which he cites in the form of cases, should be such as to make the same rule of law applicable in his case, and that the judges in those cases thought that the rule contended for applied to such conditions. A judge will not go very far in examining cases in a library until he will find out on what plan the brief has been constructed, and whether it is a fraud or not. If he finds that it has been made up by citing all cases found in the notes to text books under any statement similar to what counsel claims, from digest, and from other like sources without examination, and that most of them have no relation to the question under investigation, he is not to be much blamed if he does not continue the search very far. If the statement of the case made by the appellant or plaintiff in error is not satisfactory to the other side, it may be corrected or explained in the brief for the appellee or defendant in error, and all complaints may be met and overcome by such brief. ARGUMENT. When briefs have been filed, the case may be argued orally, and the points of the brief may be elaborated with all the reasoning and illustration that counsel may be able to command. Causes are seldom argued in that way, but counsel avail themselves of the privilege of printing their speeches and filing them with the briefs as argument, and are best satisfied to leave their cases with the argument in that permanent form. It has been often said that the courts discourage oral argument, implying that they do not care for enlightenment on the questions on which they are to pass. This would be remarkable if true, but the fact is that the practice discouraged is the mere reading or reiteration of the printed argument. Counsel usually puts into his printed argument all that he intends to say, or can say, by way of oral argument. In such cases an oral argument ordinarily consists only of a reading of the printed speech, or a restatement of it, with perhaps some slight variation of phrase, but generally without any SPECIAL ADDRESS. change whatever, and if the printed argument is not actually read, the oral argument closes with the statement that the court will find all the questions fully discussed in the printed argument. The only purpose in such case must be to wear or force a way for the ideas of counsel into the understanding of the judges by mere repetition and reiteration. If they will be able to understand what is plainly set down in the printed argument when they read it, and will not close and seal their minds against the truth, it will not be necessary to give it an additional reading, or to force a recognition of its propositions in that way. If, however, the attorney has anything to say except to repeat his printed argument, the courts are always pleased to hear it. The oral address has many advantages over the printed one at the hearing, but in the subsequent consideration of the case is only of force or use through the memory, and is so far transient that counsel generally select the latter, as before stated. Assuming that such a course is taken, and printed argument filed with the brief, it seems to me that about as good a general guide to its contents as any that could be stated is to put in it what counsel would feel like saying in an oral address in the presence of the court and what in his judgment would command attention in such an address. Little and trifling things receive no more respect in a printed argument than they would in an oral one, and they may as well be left out as to be put in, as they often are, with the idea that while they do not amount to much they may have some weight, and may influence some member of the court. After reading a few of them, the court will be apt to think that the grievances are all small and fancied, and the case is of little merit since the party is compelled to resort to petty complaints and small points. Such an impression will naturally tend to prejudice the argument in general. The time of the court is wasted on them, because they must generally be answered for fear that the attorney will complain that his case has not received careful attention. It is not wise to argue against propositions that are firmly imbedded in the law, and to which the court addressed is committed, nor to contend for propositions which counsel does not himself believe to be the law. The time of the court must also be wasted in answering argument of that sort, and the opinions lengthened accordingly. Wearisome prolixity is also to be avoided, and this is a great and growing evil. The stenographer and typewriter, by removing the obstruction which the time and labor employed in writing imposed, have opened the floodgates for verbiage which is poured upon the |