INTRODUCTION

This is a brilliant book by a brilliant mind. It's the seminal 20th-century

book on appellate advocacy, with wisdom, insight, and concrete examples
packed into page after page. Undoubtedly the book couldn't have been
written by anyone other than Frederick Bernays Wiener (1906-1996), or
"Fritz" as he was known to his friends. It reflects his keen intellect, his
acute observations of judicial decision-making, and his wide-ranging
experience as an appellate advocate.
Wiener, a great-nephew of Sigmund Freud, studied at Brown University,
graduating cum laude in 1927; and at Harvard Law School, graduating
magna cum laude in 1930. He was a note editor on Harvard Law Review.
After graduating, Wiener went into private practice. Felix Frankfurter (a
law-school classmate) soon brought him into Roosevelt's New Deal
administration as part of the Department of the Interior. Then, during World
War II, Wiener served in the Judge Advocate General's Corps in the U.S.
Army. After the War, he worked in the Solicitor General's Office for many
years, arguing several cases in the U.S. Supreme Court. Wiener resumed
private practice in 1948, and as a private lawyer he argued 18 more cases
before the Court — as well as countless cases in other federal courts.
His most famous case was Reid v. Covert, which he won in 1957 on a
motion for rehearing in the U.S. Supreme Court. He persuaded the Court
that courts-martial have no power to try civilians in peacetime. This was, in
Wiener's own characterization, "the first and only time the Supreme Court
had reached a different result in the identical litigation, following published
opinions — now 'withdrawn' according to the headnote at 354 U.S. 1 —
and without a controlling change in the composition of the Court." 2 He
was justifiably proud.
Small wonder that the Johnson administration considered Wiener for an
appointment to the federal bench — specifically, to the U.S. Court of
Military Appeals. His name didn't progress very far because, though
admittedly astute, he was thought to lack the temperament for the job. More
than 20 years later, in 1987, he said: "I don't think that, had I been
appointed, I would have lowered the average ability on that tribunal." He
seemed to attribute the perceived lack of temperament to his perfectionism:
"You know the definition of a perfectionist? He's the man who takes infinite
pains himself and gives infinite pain to others. Maybe I have been a
perfectionist." He was also a scholar of vast learning. In fact, he is regarded
as one of the two greatest American scholars of military law and precedents
(the other being William Winthrop, the 19th-century treatise-writer). He
wrote copiously on courts martial, martial law, and legal history.
But for most lawyers, his most enduring (and most endearing) work was
on advocacy. Today's advocates have much to learn from Wiener. Think
hard before you write (pp. 13637). State your facts persuasively but
accurately — and don't editorialize (pp. 44-63, 129-36). Phrase your issues
persuasively (pp. 72-81). Use argumentative headings (pp. 67-72). Stick to
clear, forceful English (pp. 64-67). And study the splendid examples
throughout the book. It's a rich text in which Wiener foresaw appellate
specialization (pp. 380-381), explained how to handle questions in oral
argument (pp. 324-27), and showed how to use maps and charts both in
briefs and in oral argument (pp. 330-31). That's just a small sampling of the
many tips for avoiding an affliction that is fairly endemic within the
profession — what Wiener calls "forensic halitosis" (p. 8).
2. Frederick Bernays Wiener, Persuading the Court to Reverse Itself:
Reid v. Covert, 14Litig. 6,10 (1988).
3. Quoted in the tribute of Dr. Jonathan Lurie, Daily J. of the U.S. Court
of Appeals for the Armed Forces, 17 Dec. 1996.
Although a few passages in the book are now dated (for example, the
gratuitous sexism found in a few places), the text as a whole stands as a
major monument in written and oral persuasion. I agree with the
commentator who recently called it "one of the finest books ever written
about briefing and arguing on appeal." May this new printing of the text
win many new readers for Wiener. He deserves that, and they need him.

Bryan A. Garner
Dallas, Texas
April 2001
 FOR
DORIS
Best friend and most perceptive critic
 FOREWORD
To get into court and to maintain your right to be there is the object of all
pleading and is as important in an appellate court as in a trial court.
In the courts of the United States with which this book deals, one is
seldom thrown out of court because of poor pleading. If the jurisdictional
facts are there, the court will consider your case. Nevertheless the lawyer
will be well advised to pay careful attention to his pleading, since that is his
first introduction to the court. A case well pleaded is a case half argued.
In cases on appellate review there are, in addition to pleading, the
problems of briefing and oral argument. A brief should be brief and concise,
while at the same time it is elaborating in written form the propositions laid
out in your pleading. Skill in presentation and in arguing those propositions,
first in writing and then on your feet, will challenge and command the
attention of the court.
This book is a guide to handling of cases on appeal in the Federal courts
by one who is eminently qualified to instruct and direct in this field. The
author is a distinguished and able advocate at the bar of the Supreme Court
of the United States with wide experience in appellate work, stemming
from his position as a former Assistant to the Solicitor General of the
United States and then from an extensive private practice.
SHERMAN MINTON
 ACKNOWLEDGMENTS
"No man is an island," and therefore even one's most personal,
individualistic, and single-handed productions necessarily reflect the impact
of others.
This book, now in a revised version, is no exception. In the remarks
affixed to the earlier edition—written just eleven years ago this month—I
listed the many kind friends to whom I was then indebted, some named,
others necessarily nameless. Those acknowledgments assuredly carry over
into the present volume.
On this occasion, also, my thanks for help and, above all, for additional
insights into the subject-matter, are due many persons. Again there are
many members of the bench who should not be more particularly identified,
but who have continued to shape my thinking and approaches in the field of
appellate practice.
And this time, far more than before, I owe a genuine debt to the many
doughty opponents whom I have faced in appellate courts over the last ten
years. Not infrequently, as indeed the pages that follow bear witness, I did
not fully approve of all of their techniques in particular instances. But their
talents and resourcefulness have called forth on my part the best that I could
muster, and for that I am truly grateful.
And now it is a particular pleasure to express my deep appreciation to
named individuals:
To the Hon. Sherman Minton, Associate Justice of the Supreme Court of
the United States, Retired, for his kindness in contributing the Foreword.
To the judges, listed in Chapter II, who were good enough to answer my
questions regarding the operating methods of their several courts.
To Saul Gordon, Esq., of the New York Bar, my colleague in some uphill
battles, for suggesting many helpful revisions of the earlier text.
To my wife, Doris Merchant Wiener, not for reading the manuscript—
that, after all, was a chore she could hardly avoid— but for the unerring
critical sense that she brought to bear upon it.
 To Charles J. Alexander, Esq., of the District of Columbia Bar, for
checking every citation. (He volunteered for that detail; I didn't dare request
him to assume such drudgery, however necessary.)
To my secretary, Mrs. Hazel Shadix Whitehead, for typing the
manuscript.
To the editors of the American Bar Association Journal, for permission
to reprint a chapter that first appeared in their pages.
And, not least, to the editorial staff of BNA, Incorporated, for assistance
in seeing the book through the press, and for the numerous succulent
lunches that they contributed in the process.
F. B. W.

Washington, D. C,
February 1961
 FIRST PART
FACTORS CONDITIONING THE APPEAL
 CHAPTER I

THE IMPORTANCE OF APPELLATE

ADVOCACY

Section 1. Scope of the book.

—This book tells how to brief and how to argue a Federal case on appeal.
Its primary purpose is to explain to the lawyer how he can best persuade a
Federal appellate court to decide a case in his favor. It is neither a practice
manual nor a text on Federal appellate procedure, being written on the
assumption that all the procedural steps necessary to perfect the appeal have
been or will be timely taken. Consequently this book deals with problems
that are common to appeals in whatever Federal court they may be
presented.
Many of the principles defined and discussed herein are applicable also
to the argument, oral and written, of questions of fact and law presented and
heard in Federal trial courts. The task of presenting facts and law
effectively, the psychology of persuasion, the requirements of candor and
accuracy—these are matters common to forensic effort in every courtroom,
at every stage of a litigated proceeding.1

Section 2. Scope of this revision.

—The first version of the present work, entitled Effective Appellate
Advocacy, was published in 1950.2 The present edition differs from the
earlier one in three respects.
1"Every judge would wish that the foregoing advice [excerpts from
Sections 96 (An effective opening) and 97 (Clear statement of facts) ]
were memorized and carried out by every lawyer, not only in arguing
appeals but also in presenting matters at nisi prius. In fact a great deal of
the book contains material that would be useful to lawyers in arguing
matters in trial courts, although the title of the book modestly purports to
 limit its material to work in the appellate courts." Review of the first
edition by Judge Alexander Holtzoff, 39 Geo. L. J. 356, 357.
2See reviews by Judge Charles Fahy [U. S. Circuit Judge, D. C.
Circuit], 3 J. Legal Educ. 471; Judge Alexander Holtzoff [U. S. District
Judge, District of Columbia], 39 Geo. L. J. 356; William D. Mitchell [a
former Attorney General and Solicitor General of the U. S.], 64 Harv. L.
Rev. 350; Owen Rail [of the Chicago Bar], 36 A.B.A.J. 769; C. Brewster
Rhoads [of the Philadelphia Bar], 99 U. of Pa. L. Rev. 261; Chief Justice
Arthur T. Vanderbilt [Supreme Court of New Jersey], 25 N.Y.U.L. Rev.
933; Paul Ware [of the Chicago Bar], 45 111. L. Rev. 531.
(a) Expansion and Modernization. The basic features of the original
version have been preserved, and many, many portions have been repeated
verbatim. But every passage has been carefully studied with a view to
revision wherever necessary, whether by way of modernization in order to
supply references to later decisions and later statutes and to add more recent
examples; or through change of emphasis; or, in a number of significant
particulars, by change of substance in the light of further experience.
In the process, the original text has been substantially expanded, and a
considerable number of additional topics have been included, in connection
with both briefs and oral arguments. Moreover, the former section on
rehearings has been expanded into a full chapter, and an entirely new
chapter, discussing whether different counsel should be brought in on
appeal, has been added.
(b) Limitation to Federal Appeals. For reasons that seemed sound to me
—and are acceptable to the publisher—this revision has been limited to
appeals in the Federal courts. References to the practice in the specialized
Federal appellate courts have been added. But of course, as will indeed be
obvious, the teachings expounded below are fully applicable, in every
substantial particular, to appeals in State courts.
(c) Illustrative Examples. The illustrative materials are now restricted to
three subjects: Comparative examples of a Statement of Facts from
successive briefs in the same litigation, to illustrate how such a statement
can be framed to advance one's case; two successful petitions for rehearing,
one in the Supreme Court of the United States and one in a United States
Court of Appeals; and the annotated transcript of an oral argument.
 On occasion, there will be references to some of the illustrative materials
found in Effective Appellate Advocacy. But this should not occasion undue
inconvenience. The earlier version is available in many libraries, and
moreover all of the briefs therein that are referred to below were filed in the
Supreme Court of the United States. Thus they are widely available for
examination. Those printed briefs are distributed, by order of the Court, to
about 20 bar association libraries and law schools all over the country,
while about 40 additional libraries receive, by subscription, additional
copies of such briefs on microfilm and microcards. The printed records in
Supreme Court cases are similarly distributed.
Section 3. Importance of appellate advocacy.—Counsel defeated in the
trial court—the licked lawyer—is recognized as having two inalienable
rights: (1) he may go down to the inn at the county seat, or to his club in
town, and cuss the court and/or jury;3 and (2) he can take an appeal. The
shelves of American law libraries, which groan under the constantly
accumulating load of reports of decisions in appealed cases, are living proof
that the second right has been exercised times without number.
Appeals are therefore important, whether one lawyer seeks on behalf of
the appellant to undo the great injustice done his client at the trial, or
whether another lawyer, on behalf of the appellee, strives to support the
judgment or decree so justly entered in the court of first instance. And, for
the same reason, effective appellate advocacy, which is the technique (or, if
one prefers, the art) of effectively persuading appellate courts to decide in
one's favor, is likewise important.
Once in the appellate court, the lawyer is addressing a tribunal that,
individually and collectively, is seeking to do substantial justice. He will be
writing and speaking to judges fired by a desire to reach a just result, who
in consequence are sensitive to the equities of the particular case.4 But they
must necessarily rely on the opposing advocates to make them aware of
those equities, and to point out the facts of record and the applicable rules
of law that compel a just decision.
This book endeavors, among other things, to tell lawyers how to stress
the equities of their cases persuasively, to the end that they may win their
cases on appeal.
 Section 4. Can appellate advocacy be learned?
—It may be urged—and some friends have suggested—that it would be
just as impossible—quite as unhelpful—to attempt to teach advocacy as to
write a learned tome on how to paint a picture or how to write a novel. That
stricture may well be true as to some of the finer points of the process;
certainly neither the writing of a brief nor the oral presentation of an appeal
can qualify as an exact science. Nor is there, as to either activity, any single
"approved solution." Mr. Wellman entitled his classic guide for the trial
lawyer The Art of Cross-Examination, and it may well be that appellate
advocacy, at least when it is skillfully and effectively practiced, is also
something of an art. Nonetheless, the process in its essentials can be stated
in terms of rules, or at least of standards of fairly general application. It can
therefore be taught—and learned; learned, too, more quickly and somewhat
less painfully than simply through one's own mistakes. For in law, as in
other fields of human endeavor, it is only the fool who needs to learn by his
own experience: the wise man learns, and profits, from the experience of
others.
3 "In publicly criticizing this Court's opinion the Secretary merely
indulged in a practice familiar in the long history of Anglo-American
litigation, whereby unsuccessful litigants and lawyers give vent to their
disappointment in tavern or press." United States v. Morgan, 313 U. S.
409, 421.
4 "If unblamed I may advert to my own experience, I always felt in the
exercise of the judicial office irresistibly drawn to the intrinsic justice of
the case, with the inclination, and if possible the determination, to rest
the judgment upon the very right of the matter. In the practice of the
profession I always feel an abiding confidence that if my case is morally
right and just it will succeed, whatever technical difficulties may appear
to stand in the way; and the result usually justifies the confidence."
Dillon, The Laws and Jurisprudence of England and America (1894) 17-
18.

Section 5. Should appellate advocacy be taught?

 —Anyone who has ever spent any length of time in an appellate court,
whether for instructional purposes or by way of busman's holiday, or even
simply waiting for his own case to be reached, will answer that question
with a resounding "Yes." Advocacy needs to be taught, and it needs to be
learned. Too many, far too many, lawyers burden appellate courts with
poorly prepared, poorly presented, and thoroughly unhelpful arguments—
for which they receive, and clients pay, substantial and not infrequently
handsome fees. Lawyers, like other professional men, can be divided into
the classic three-fold scale of evaluation as able, unable, and lamentable.
Nonetheless, and after making due allowance for the frailties of mankind, it
is really amazing how few good arguments are presented and heard, quite
irrespective of the tribunal concerned. About a dozen years ago, I was told
by a Justice of the Supreme Court of the United States that four out of every
five arguments to which he is required to listen were "not good." While the
present revision was in preparation, I inquired whether he considered that
the proportion of good arguments had risen. His reply was in the negative,
although he suggested the word "inadequate" to characterize most of the
arguments he was required to hear. One of his colleagues, a few years
earlier, stated publicly that "in the short time that I have been on the bench
one of the things that has astonished me most is the number of
disappointing arguments to which courts have to listen." 5 And comments
from judges of other appellate courts give me no reason to suppose that the
percentage of good arguments elsewhere was or is now perceptibly higher.
It would seem to be, therefore, still time for the subject of appellate
advocacy to be given some attention. The present book is a response to the
conviction that there is nothing mysterious or esoteric about the business of
making an effective written or oral presentation to an appellate court, that
the governing principles of the process can be extracted and articulated and
therefore taught, and that any competent lawyer has the ability, with study
and proper application, to write a brief and make an argument that will
likewise be competent—and that will further his client's cause.

Section 6. Why bother with advocacy at all?

—A representative cross-section of the graduates of one distinguished
law school were once polled by the faculty, and asked to rank "the skills of
a lawyer" in the order of their importance in their particular branches of
practice. "The lowest rating, by a fairly wide margin, was given to skill in
advocacy." 6
Even if this simply means that most alumni of that particular institution
never get to court, but instead devote most of their energies to the office or
to conferences or consultations with clients, the rating is amazing—and, it
is submitted, amazingly wrong. For whenever a lawyer negotiates, or puts a
proposition to a client, or even when he discusses a difference of opinion
with an associate, he is engaged in advocacy, viz., the process of trying to
convince people of something, the technique of persuasion. It is significant
that Sir Winston Churchill, speaking of the thirty most active and fruitful
years of his life, referred to them as "years of action and advocacy." 7 And it
is likewise significant that the very same group of lawyers, especially the
older graduates, gave to "the ability to understand and marshal facts" "the
highest rating by a considerable margin." 8 Now the marshalling of facts is
not a talent in vacuo; it is one of the vital elements of advocacy. And, as
will be demonstrated below at length and in some detail, it is frequently the
most vital element.
5Harlan, What Part Does the Oral Argument Play in the Conduct of
an Appeal?, 41 Corn. L. Q. 6,10.
6Fuller, Work on the Curriculum, Harvard Law School Bulletin, No.
2, July 1948, p. 3.
7
Churchill, The Gathering Storm (1948), p. iv. (Copyright by Messrs.
Houghton, Mifflin & Co.)
8 Note 6, supra.
The low rating given to advocacy therefore does more than illumine and
underscore the view of my distinguished judicial friend that four out of
every five lawyers appearing before him have forensic halitosis (or such
other oral ailment as may be suggested) ; it indicates that too many
members of the bar fail to understand what advocacy really is. It is not
simply haranguing a jury about "this poor boy" or the unwritten law, so-
called. It is not simply screaming at an appellate court or being "positive" in
the Ambrose Bierce sense, which is to say, wrong in a loud tone of voice. It
is, whether in court or out, an exercise in persuasion. And that, after all, is
why a lawyer appears before an appellate court: to persuade the tribunal to
decide the case in his favor. And since when has skill in persuading a
particular group of hearers to decide in his favor become a minor factor in
the skill of a lawyer?
But it may be urged, and frequently is, that it should be possible to
submit the entire case or controversy to the court without any argument,
either written or oral. Why not, so the question goes, why not simply hand
up the record and the relevant authorities? After all, the judges are
disinterested, they are learned in the law, and many of them have bright
young law clerks to assist them in their researches. The judges either make
or find and declare the law—depending on one's particular jurisprudential
views.9 Therefore, why not leave the whole matter to them, and avoid the
contentiousness and the expense and the artificiality of litigation?
The best answer to these suggestions is to apply a technique borrowed
from one of the so-called exact sciences. When doctors wish to learn the
function of a particular human gland whose workings are not too clear to
them, they remove the corresponding gland from a dog or other animal, and
study the effects of the excision. Thereafter, when they have observed the
behavior of the poor pooch minus that particular organ, they generally
acquire considerable insight into what the X gland really does.
9 See Chafee, Do Judges Make or Discover Law?, 91 Proc. Am.
Philos. Soc. 405. When rights—especially pecuniary rights—depend on
the effect to be given an overruled decision that had earlier been relied
upon, this problem ceases to be a merely philosophical one. For two
striking examples, see Harris v. Jex, 55 N. Y. 421; People ex rel. Rice v.
Graves, 242 App. Div. 128, affirmed, 270 N. Y. 498, certiorari denied,
298 U. S. 683.
I propose to apply the same technique to a still somewhat cloudy realm of
law, and to answer the question, "Why bother with advocacy at all?" by
taking an actual case that was not presented in the true advocate's fashion in
the brief, and by then examining the result.

Section 7. What happens when a case is not presented in

advocate's fashion?
 —The guinea pig experiment for present purposes will be Cramer v.
United States,10 the first case in which the Supreme Court of the United
States had ever considered a conviction for treason on the merits.11 It is
now some fifteen years old, but its date is immaterial to the principle about
to be considered.
Here are representative excerpts from the Supreme Court's opinion:

[The Treason Act, 25 Edw. Ill] cut a bench-mark by which the English-
speaking world tested the level o£ its thought on the subject until our own
abrupt departure from it in 1789.12
* * * necessity as well as desire taught a concept that differed from all
historical models in the drafting of our treason clause.13
The framers combined all of these known protections and added two of
their own which had no precedent. * * * And a venerable safeguard against
false testimony was given a novel application by requiring two witnesses to
the same overt act.14
So [the framers] added what in effect is a command that the overt acts
must be established by direct evidence, and the direct testimony must be
that of two witnesses instead of one. In this sense the overt act procedural
provision adds something, and something important, to the definition.15

In the Cramer case, the petitioner's conviction was reversed, five to four,
and the majority opinion, just quoted, asserts that both the constitutional
concept of treason and the two-witness requirement were new. Both points
are developed at some length in the Court's opinion, which extends to
nearly 46 pages in the official reports.
10 325 U.S. 1.
"In Ex parte Bollman, 4 Cranch 75, and Stephan v. United States, 318
U. S. 781, 319 U. S. 423, 319 U. S. 783, the Court did not consider the
substantive questions. Following Cramer, two other treason cases were
determined on the merits: Haupt v. United States, 330 U. S. 631;
Kawakita v. United States, 343 U. S. 717.
12 325 U. S. at 17-18.
 13 325 U. S. at 20.
14 325 U. S. at 24.
15 325 U. S. at 30.
But, as a matter of demonstrable historical fact, the constitutional
definition of the crime of treason was taken from the English Statute of 25
Edward III, and the two-witness requirement, which had been in and out of
English law since 1547,16 derived from the English Statute of 7 and 8
William III. This appears clearly from an examination of the text of the
three provisions.

(i) Constitution of the United States, Article III, Section 3:

Treason against the United States, shall consist only in levying War
against them, or in adhering to their Enemies, giving them Aid and
Comfort. No Person shall be convicted of Treason unless on the Testimony
of two Witnesses to the same overt Act, or on Confession in open Court.

(ii) St. 25 Edward III, stat. 5, c. 2:

* * * if a man do levy war against our Lord the King in his realm, or be
adherent to the King's enemies in his realm, giving to them aid and comfort
in the realm, or elsewhere, and thereof be provably attained of open deed by
the people of their condition: * * * that ought to be adjudged treason. * * *
* 17

(iii) St. 7 and 8 William III, c. 3, sec. 2:

* * * noe Person or Persons whatsoever shall bee indicted tryed or

attainted of High Treason whereby any Corruption of Blood may or shall
bee made to any such Offender or Offenders or to any the Heir or Heirs of
any such Offender or Offenders or of Misprision of such Treason but by and
upon the Oaths and Testimony of Two lawful Witnesses either both of them
to the same Overtact or one of them to one and another of them to another
Overtact of the same Treason unlesse the party indicted and arraigned or
tryed shall willingly without violence in open Court confesse the same or
shall stand Mute or refuse to plead or in cases of High Treason shall
peremptorily challenge above the number of Thirty five of the Jury Any
Law Statute or Usage to the contrary notwithstanding.
16 See 7 Wigmore, Evidence (3d ed. 1940) § 2036.
17
Original text in Norman-French; translation from Rex v. Casement,
[1917] 1 K. B. 98, 99.
So far as an indictment for treason alleging only a single overt act is
concerned, the quantitative requirement of the St. 7 & 8 Will. Ill is, of
course, identical with that of the Constitution of the United States.
And Mr. Justice James Wilson of the Supreme Court of the United States,
who had been a member of the Constitutional Convention and in that
capacity had drafted the treason clause,18 made this observation in 1790
concerning the constitutional definition of the offense:
* * * This single sentence comprehends our whole of national treason;
and, as I mentioned before, is transcribed from a part of the statute of
Edward the third. By those who proposed the national constitution, this was
done, that, in a subject so essentially interesting to each and to all, not a
single expression should be introduced, but such as could show in its
favour, that it was recommended by the mature experience, and ascertained
by the legal interpretation, of numerous revolving centuries.19
The paradox or, if one will, the mystery of the Cramer case is twofold.
First, the St. 7 & 8 Will. Ill, which settled the two-witness rule in the law of
treason,20 was not cited in either opinion; second, the opinion of the Court
refers to the treason clause of the Constitution as representing a novel
application, a new concept, and an abrupt departure, in the face of Mr.
Justice Wilson's statement in 1790—and he had drafted the clause in 1787
—that the old language was employed because of a desire to carry over the
old interpretations.
How account for this extremely curious result?

Section 8. Explanation of the mystery.

 —Both the St. 7 & 8 Will. Ill and Mr. Justice Wilson's statement were
before the Court in the Cramer case.21 But the Government did not file an
advocate's brief after the Court set the case down for reargument. The
Government filed, in an Appendix, a very scholarly historical study of the
law of treason, running to 404 pages. It was not, nor did it purport to be, an
argument; it was an impartial discussion.22 In addition, the Government
also filed an 88-page brief that was in the nature of a commentary on the
Appendix.
18 See Hurst, Treason in the United States, 58 Harv. L. Rev. 395, 404-
406.
19 3 Works of James Wilson (1804), 99-100.
20See 7 Wigmore, Evidence (3d ed. 1940) § 2036. England repealed
the requirement in 1945, see St. 8 & 9 Geo. VI, c. 44 (The Treason Act,
1945), apparently in order to deal with the case of Lord Haw-Haw. Joyce
v. Director of Public Prosecutions, [1946] A. C. 347.
21
See, for the latter, Appendices to Brief for the United States on
Reargument, No. 13, Oct. T. 1944, p. 277.
The realm of "might have been" is traditionally an unprofitable source of
speculation. Whether the Cramer case could have been won, whether a fifth
justice might have been persuaded to vote the other way if the Government
had filed a real brief, i.e., an argumentative document, a written argument
instead of a colorless, "dispassionate," impartial, and necessarily discursive
treatise, is not a question that can be helpfully discussed. But whatever a
fighting, argumentative brief might or might not have accomplished, it
would certainly have saved the Court the embarrassment of a whopping
historical boner as to the concept of treason.
The dissenting judges expressed the views of Mr. Justice Wilson. They
said:
There is * * * no evidence whatever that the offense of adhering to the
enemy giving him aid and comfort was designed to encompass a narrower
field than that indicated by its accepted and settled meaning. Nor is there
the slightest indication that the kind or character of overt acts required were
any different than those which had long been recognized or accepted as
adequate.23
But they had no documentation to support these assertions; the crucial
contemporaneous comments of Wilson, J., had been lost, literally lost,
somewhere in the 404 pages of "fair, dispassionate, and informative
analysis."

Section 9. The advocate's duty.

—The basic premise of common-law jurisprudence is the view that the
best and surest way of ascertaining the truth and arriving at a just result is to
have an impartial tribunal make its decision after first hearing the opposing
parties present their conflicting contentions in the strongest and most
forceful way.
22 "The following appendices [App. A, Civil and Canon Law
Materials; App. B, Anglo-American Materials] have been prepared at the
request of the Solicitor General. The authors of the appendices were
requested to avoid argumentative support of any particular position, and
to select material for inclusion or exclusion solely on the basis of its
reliability and its relevance to the questions under review by the Court.
The appendices are submitted to the Court in the belief that they
constitute a fair, dispassionate, and informative analysis of the law of
treason; but the Government does not in any way assume responsibility
for, or necessarily agree with, the inferences drawn or the conclusions
expressed by the authors." Appendices to Brief for the United States on
Reargument, No. 13, Oct. T. 1944, p. iii.
23325 U. S. at 76. Compare the concurring opinion in the next treason
case, Haupt v. United States, 330 U. S. 631, 644, written by the author of
the Cramer dissent.
The corollary of that premise is that when the opposing positions are not
strongly or argumentatively presented, the tribunal may well fail to
ascertain the truth and reach a sound result, and may be led into egregious
error. My own considered view, reached after a good deal of searching
cogitation, that the Cramer case stands as a living monument to that
corollary, has since been confirmed, not only by further reflection and ten
additional years of appellate practice, but, preeminently, by the distinction
drawn in a subsequent Supreme Court case, Ellis v. United States.24,
There, after appointed counsel had advised a Court of Appeals that no
substantial issue existed even though there was a "possible" area of error,
leave to appeal in forma pauperis was denied.25 On certiorari, the Supreme
Court, agreeing with the Solicitor General that the issue was not one that
could be characterized as frivolous, reversed; the Court said,
In this case, it appears that the two attorneys appointed by the Court of
Appeals performed essentially the role of amici curiae. But representation
in the role of an advocate is required.28
Of course the United States, unlike private litigants, does not need to win
every case, and so its counsel are not only under what is virtually an
obligation to eschew tactics that savor of "anythingto-win," but are in a
position to practice litigation strategy, and thus to await a suitable vehicle
for establishing a principle. This unique position permits the United States
to express doubts in situations that cannot fairly be presented as being either
black or white, and, in proper cases, to confess error. See p. 104, infra. But
in the Cramer case, where the authorities supporting the conviction were, at
the very least, far stronger than their presentation made them appear, the
demonstrable result was that the Court's holding substantially varied the
constitutional content of the crime of treason from that intended and
articulated by the Framers. And the basic reason for that result was because
counsel for the prosecution "performed essentially the role of amici curiae"
and did not furnish "representation in the role of an advocate."
24 356 U. S. 674.
25 Ellis v. United States, 249 F. 2d 478 (D. C. Cir.) (5-4 decision).
26 356 U. S. at 675.
Therefore, it may be safely laid down that any lawyer who fails to brief
and argue his case so as to present his position in the most effective manner
fails in his duty, not only to his client, but also to the court whose officer he
is.
A court must be impartial. An advocate must be fair and accurate, but he
has no business being impartial. An impartial advocate not only fails in his
duty, he fails in his function as well. He is, actually and inescapably, a
contradiction in terms.
 CHAPTER II

HOW FEDERAL APPELLATE COURTS DEAL

WITH APPEALS

Section 10. In general.

—It is vital to the appellate lawyer to know at least the essential
mechanics of the appellate process as applied by Federal appellate judges,
because once the actual functioning of appellate courts is studied and
appreciated, the need for effective advocacy becomes even more apparent.
Sometimes, as in the Cramer case, the impression left by the briefs is the
controlling factor. In other instances, the oral argument is more apt to be
determinative.
Some lawyers feel that oral argument is unimportant, because "the judges
will study the briefs"—and the briefs are written by the bright young lads in
the office, who are sometimes very bright indeed. But this assumes that an
appellate court functions like a radar-operated fire-control director, which
causes the projectile always to hit the target provided only that all the
relevant data have been correctly supplied. That assumption, in many
instances, is neither a safe nor even a correct one. Because the fact of the
matter—the brutal, hard fact of the matter—is that cases frequently are won
and lost on oral argument.
This is particularly true of the indifferent cases, in which a court is not
much interested as an original proposition. There are some cases, of course,
that no one can lose—cases that may safely be entrusted to the office boy.
There are other cases that no one can win, regardless of the skill or learning
or persuasive powers of the advocate concerned. But there is a large
intermediate zone of cases, running in my judgment to perhaps a quarter of
the total, that do not present pressing problems or burning issues, and as to
which it is perfectly obvious that no one would "suppose that civilization
will come to an end whichever way this case is decided," 1 where oral
argument plays a very substantial if not a decisive part in determining the
issue. This conclusion may shock some persons, and lead others to suggest
that its statement is not sufficiently deferential or respectful to the courts. I
can only say, in the words of the countryman who was queried as to his
belief in baptism, "Good Lord, yes! I've seen it done." I have seen cases
won and lost on oral argument. And the reason for this phenomenon will
appear more clearly when the mechanics of the appellate process are
examined.
1 Holmes, J., dissenting, in Haddock v. Haddock, 201 U. S. 562, 628.
There are two phases to be examined under this heading— the processes
of Federal appellate courts before argument, and their processes after
argument.

Section 11. Court's practice before argument: Supreme Court

of the United States.
—To what extent do appellate judges study the record and briefs before
counsel get up?
In the Supreme Court of the United States, the justices know in a general
way what a case is about before it is argued on the merits, because they
have already examined the jurisdictional statement when the case comes up
on appeal as of right, or the petition for certiorari when it comes up for
discretionary review. Whether thereafter, before the argument on the merits
but after the noting of probable jurisdiction or the granting of the writ of
certiorari, they read the briefs on the merits, is something that varies with
the individual justice and with the burden of work at any particular moment.
It varies also with the same justice.
In the past, so I had heard it said by one who had reason to know, only
the late Mr. Justice Cardozo made an invariable practice of reading the
briefs in advance. But at the present time it is my impression that more of
the justices regularly read the briefs on the merits before argument than at
any time in the last two decades or so.2

Section 12. Court's practice before argument: United States

Courts of Appeals.
(i) First Circuit. Judge Magruder, for many years Chief Judge, wrote: "I
cannot say that we 'invariably' read the briefs before argument, but I think it
is the general practice of all of us to do so." 3
2An impression since confirmed by one of the present members of the
court. See Brennan, State Court Decisions and the Supreme Court, 31 Pa.
Bar Ass'n Q. 393, 403 (1960).
3
Letters from the Hon. Calvert Magruder, then Chief Judge, July 27,
1948, and June 6, 1957.
(ii) Second Circuit. Former Chief Judge Clark wrote: "Except for the en
banc cases, our practice is in general not to read the briefs before the
argument. This is not an invariable or ironclad rule, and any member of the
court is at liberty to obtain the briefs and appendices before argument and
read them. This may be, and indeed often is, done in an important and
specially assigned case which a particular panel of the court can confidently
expect to have committed to it. In other cases the practice is less usual, for
the practical reason that we sit in panels and, since we normally have a
press of cases awaiting argument, rather freely postpone or reassign cases
from panel to panel. Of course had we a strong tradition for the need of
advance reading of briefs, we undoubtedly would not allow this matter of
calendar assignment to control; but since there is not, and indeed no real
demand in our court for a change, we follow rather happily this traditional
course." i
(iii) Third Circuit. Chief Judge Biggs writes: "The judges make a point of
reading the briefs before argument. They do so in every instance except
where some unforeseen event occurs, such as a judge being ill or some
other emergency arising which requires another member of the court to take
his place on short notice." 5
(iv) Fourth Circuit. The late Chief Judge Parker wrote— and Chief Judge
Sobeloff has confirmed—that "in our court the judges have the practice of
reading the briefs before argument, and this practice is almost invariably
followed." 6
(v) Fifth Circuit. Judge Sibley, a former Senior Circuit Judge, wrote in
1948 as follows:
When I came on the appellate bench in 1930 neither briefs nor records
were examined in advance of argument, the judges preferring to have
perfectly open minds until oral argument was heard, and no expression of
opinion was made till briefs and record had been read and we went into
conference about the case several weeks later. There was quite a lag in
making decisions, and some forgetfulness of details. For the past few years
we have usually looked over briefs and records in advance of argument, so
as to have a general idea of the points in the case, and at the time of
argument frequently so tell counsel, and that they need not expend much
time in stating the case, but go at once to the discussion. We are rather
given also to asking questions about what seems to us the most pressing
points. This has all tended to save time and concentrate the argument, and I
believe has not produced much prejudgment of the cases.7
4Letter from the Hon. Charles E. Clark, then Chief Judge, June 25,
1957.
5Letters from the Hon. John Biggs, Jr., Chief Judge, September 11,
1948, and June 11, 1957.
6Letters from the Hon. John J. Parker, then Chief Judge, July 27,
1948, and June 10, 1957; confirmed by letter from the Hon. Simon E.
Sobeloff, Chief Judge, February 3, 1959.
The briefs are still read in advance today.8
(vi) Sixth Circuit. In 1948, each judge pursued his individual preference
as to reading briefs before or after oral argument.9 The same is true today,
although possibly most of the judges read briefs beforehand.10
(vii) Seventh Circuit. Former Chief Judge Duffy wrote that, in general,
the judges read the briefs before argument.11
(viii) Eighth Circuit. Former Chief Judge Gardner wrote: "I read all briefs
before the argument, not with a view to determining how the case should be
decided, but with a view of determining in advance what the issues are.
This practice is, I think, generally followed by all our Judges," although
"the practice varies to some extent with the individual Judge." 12
(ix) Ninth Circuit. The late Chief Judge Denman wrote: "It is our practice
to read the briefs before argument." 13
 (x) Tenth Circuit. In this court the judges do not read the briefs before
argument.14
(xi) District of Columbia Circuit. Judge Fahy writes that while the
practice is individual as to the judge, "each as a rule goes over the brief
before argument." 15

Section 13. Court's practice before argument: Specialized

Federal Courts.
(i) United States Court of Claims. Strictly speaking, of course, the Court
of Claims is a court of original jurisdiction, with a very limited and
specialized jurisdiction on appeal.16 But when the Commissioner to whom
the case has been assigned is directed by the Court to file his
"recommendation for conclusions of law" —a direction that is being made
in an increasing number of instances 17—he writes an opinion, and the case
is then presented and handled precisely like appellate cases everywhere.
Indeed, there is very little difference for counsel when, even in the absence
of such a direction, exceptions are taken only to the Commissioner's report
finding the facts. It is proper to add that the essentially appellate nature of
the Court of Claims' work has recently been emphasized by the
circumstance that, pursuant to a resolution of the Judicial Conference of the
United States, Court of Claims cases now appear in the Federal Reporter
rather than in the Federal Supplement. This change became effective after
181 F. Supp., and with 276 F. 2d.
7
Letter from the Hon. Samuel H. Sibley, a former Senior Circuit
Judge, August 17, 1948.
8
Letter from the Hon. Joseph C. Hutcheson, Jr., then Chief Judge,
September 30, 1957.
9 Letter from the Hon. Xen Hicks, then Chief Judge, October 28, 1948.
10
See Institute of Judicial Administration, Appellate Courts—Internal
Operating Procedures—Preliminary Report (July 5, 1957), p. 13.
"Letter from the Hon. F. Ryan Duffy, then Chief Judge, June 27, 1957.
 12Letters from the Hon. Archibald K. Gardner, then Chief Judge, July
29, 1948, and June 11, 1957.
13Letters from the late Hon. William Denman, then Chief Judge,
September 20, 1948, and June 28, 1957.
14
Letters from the Hon. Alfred P. Murrah, Circuit Judge, August 5,
1948, and June 13, 1957.
15 Letter from the Hon. Charles Fahy, Circuit Judge, June 7, 1957.
Judge Whitaker of the Court of Claims advises that "The practice of
examining briefs before the argument varies with the individual judges on
our court." 18
ii) United States Court of Customs and Patent Appeals. Judge Jackson
advises that, while the judges "as a rule" read the briefs before argument,
the practice varies with the individual judge.19
iii) United States Court of Military Appeals. Judge Latimer writes that the
practice varies with each judge.20

Section 14. Court's practice after argument: In general.

— Here two basic questions arise, the answers to both of which condition
the task of the advocate.
First, when is the vote taken? Do the judges study the case first and then
vote, or do they vote first and then write an opinion following study of the
records and briefs? If the vote is taken first, the opinion is very apt to
become, certainly in effect, a brief in support of the majority vote 21—
another factor that emphasizes the importance of the impression left at the
close of the oral argument.
16See 28 U.S.C. § § 1491-1505. With the consent of all appellees,
federal tort claims cases may be appealed from district courts to the
Court of Claims, 28 U.S.C. § 1504, although no such appeal has yet been
docketed; and the Court of Claims has a general appellate jurisdiction
over determinations by the Indian Claims Commission, pursuant to 25
U.S.C. § 70s. See, e.g., United States v. Seminole Nation, 173 F. Supp.
784.
 17See Stern and Brenner, The 1957 Revision of the Rules of the United
States Court of Claims, 21 F.R.D. 259, 266, 268. For a recent example of
a Commissioner's opinion adopted by the Court of Claims, see Griffiths
v. United States, 172 F. Supp. 691.
18 Letter from Judge Samuel E. Whitaker, September 26, 1957.
19 Letter from Judge Joseph R. Jackson, October 11, 1957.
20 Letter from Judge George W. Latimer, September 4, 1957.
Second, do all the judges write a memorandum on the case, or is a draft
opinion written by only one judge in the first instance? (No Federal
appellate court, so far as is known, follows the practice of many State courts
of last resort whereby the writing of opinions is assigned in advance by a
system of rotation.) If every judge writes a memorandum, then, plainly,
there is less of a tendency to one-man opinions. But, under either method,
the more fully draft opinions are discussed, the less likelihood there is of
one-man opinions, and the greater the probability that the opinion finally
handed down will represent the composite views of the entire court.

Section 15. Court's practice after argument: Supreme Court of

the United States.
—-In the Supreme Court, two weeks of argument are normally followed
by two weeks of recess; in each of the first two weeks, Monday through
Thursday are devoted to arguments, and Friday to conference. A further
conference is also held on the last Friday of the recess. Opinions are
announced on Mondays when the Court is in session, including the Monday
that precedes a recess, and on all Mondays after arguments for the Term
have been suspended.
At the conference, the case is stated by the Chief Justice, and then
discussed by each Associate Justice in order of seniority. It is then voted on,
in inverse order of seniority, the junior Associate Justice voting first. The
writing of the opinion in the case is then assigned by the Chief Justice, or, if
he is in dissent, then by the senior Associate Justice of the majority. The
draft opinion or opinions are then circulated. Thereafter, depending on the
difficulty of the case, the opinions are considered at one or more further
conferences. Written comments of considerable length are often made by
justices to the writer of the opinion and personal discussions take place in
chambers between those on the same side of a legal question. I have been
told that frequently the form of the opinion is changed and that in unusual
cases as many as ten or fifteen drafts are circulated before final acceptance.
21 "At Conference he was open-minded. But once he had come to a
conclusion neutrality ceased. He then became an indefatigable proponent
for the position he had reached, an ardent advocate and a forceful writer
for the ground that he deemed solid. The Chief Justice delighted to take
on all comers around the conference table and armed with precedent and
reason to battle, more often successfully than not, for his views."
Address of Mr. Justice Reed on the Occasion of the Dedication of the
Birthplace of Chief Justice Stone, Chesterfield, N. H., August 25, 1948.
Frequently, the critical factor is thus the length of time between argument
and conference. If a case argued on a Wednesday is voted on by Friday,
necessarily the impression left by the oral argument will be tremendously
significant. To the extent that the vote is postponed to the next Friday or to
the conference following that one, the brief or the justices' independent
research looms larger in the final determination; the greater the time-lag, the
more independent study becomes possible. No definite information on this
variable is available; all that can be said is that it depends on the apparent
complexity of the case, on the state of the calendar, and, of course, on the
writer of the opinion.22

Section 16. Court's practice after argument: United States

Courts of Appeals.
(i) First Circuit. Chief Judge Magruder wrote:
At the conclusion of a given sitting, the members of the court invariably
have a conference in which the cases are discussed one by one, a tentative
vote is taken, and the assignment for opinion writing is made. It is not our
practice for each judge to prepare a memorandum on the case. After a draft
opinion is ready, it is circulated by mail. Sometimes this gives rise to
extensive correspondence back and forth, when disagreements develop or
when suggestions for change are made. Occasionally, a further conference
is held, either by special arrangement, or more often when the court is
assembled in Boston for a later sitting.23
22 This practice has been a matter of public knowledge since former
Justice Campbell disclosed it at the memorial services for former Justice
Curtis. 20 Wall. x. Other formulations appear in Hughes, The Supreme
Court of the United States (1928) 58-61; Stone, Fifty Years' Work of the
United States Supreme Court, 53 A.B.A. Rep. 259, 278-280 (1928);
Harlan [the elder], How the Judges of the Supreme Court of the United
States Consult, 30 Am. L. Rev. 903 (1896); Jackson, The Supreme Court
in the American System of Government (1955) 14-17. For the most recent
expositions, by Justices now sitting, see Clark, The Supreme Court
Conference, 19 F.R.D. 303 (1956); Brennan, State Court Decisions and
the Supreme Court, 31 Pa. Bar Ass'n Q. 393, 401402,404-405 (1960).
The statements in the text have been further checked by way of
precaution, and are believed to set forth accurately the existing practice.
23Letters from the Hon. Calvert Magruder, then Chief Judge, July 27,
1948, and June 6,1957.
(ii) Second Circuit. Former Chief Judge Clark wrote:
According to the well settled and quite emphasized custom of this court,
every sitting judge (and thus normally the three judges of each panel)
prepares a memorandum on every case heard. The panels are assigned for a
week's hearing of appeals and thus will normally get from fifteen to twenty
such appeals. Each memorandum of each judge gives his reaction to the
controlling principles of law and ends with his tentative vote. No
conference is held until all memoranda are completed and exchanged,
although we try to do this promptly and tentatively aim for our conference
on the Wednesday or Thursday after the week of argument. At the
conference we discuss all the cases, having the benefit of these memoranda,
and of course naturally try to answer or otherwise discuss points found in
our colleagues' memoranda. Then we reaffirm our tentative votes or modify
them as we wish, after which, and at the end of the day's conference, the
senior judge assigns the opinions to be written equally among the three
sitting judges, with perhaps a quarter or a third of the number to be disposed
of Per Curiam on the opinion below or otherwise peremptorily. The panel
then separates, and each judge prepares the opinions assigned to him and
circulates them among his colleagues, who normally endorse their
concurrence or dissent without further conference.24
(iii) Third Circuit. The judges invariably confer with each other
immediately after the argument, according to Chief Judge Biggs,
usually on the afternoon of the same day on which argument is had unless
(a rare occasion) the court sits so late that it is impossible to confer
conveniently. In this event a conference is held as soon as possible, either
the following afternoon or within two or three days. There is no time lag
unless a judge has been called in emergency and has had no opportunity to
examine the record and briefs in which event the interim will be sufficient
to let him make the examination. (Note that we use the appendix system
rather than the full record.)
The practice of having each judge prepare a memorandum was
abandoned about [1941]. In exceptional cases where there is a difference of
opinion one or more judges may prepare memoranda for a second or even a
third conference.
There is usually no conference to discuss the draft opinions. These are
simply circulated to all members of the court, including those who did not
sit in the panel as well as those who did sit. This gives an opportunity for
rehearing before the court en banc, a privilege rarely availed of. If more
than one conference is had and there are memoranda, the latter are usually
discussed.
24 Letter from the Hon. Charles E. Clark, then Chief Judge, June 25,
1957
The members of the court vote at the conference usually immediately
after argument. In some difficult cases some member of the court will be
assigned the duty of preparing a draft in the form of an opinion and the vote
will be taken by letter after the draft is circulated or at a later conference.
The opinions are assigned usually at the end of a week of sittings so that
opinion writing can be fairly distributed.25
(iv) Fourth Circuit. The late Chief Judge Parker described the procedure
in his court in these terms:
 In the afternoon after the argument a conference is had and the case is
discussed in the light of the briefs and argument. Sometimes if the case is a
difficult one it is carried over for further conference. After the case has been
thoroughly discussed the vote is taken and the [Chief] Judge, either then or
at the end of the term, assigns the case for opinion. After the opinion is
prepared by the judge to whom it is assigned it is sent to all the judges who
sat in the case and to all the Circuit Judges who did not sit. If there is
controversy as to the content of the opinion the case is again called into
conference.26
More recently, Chief Judge Sobeloff wrote:
The practice in the Fourth Circuit is still as Judge Parker described it. I
might add, however, that in a number of cases, before a decision is reached,
elaborate memoranda are prepared and circulated among the Judges, and in
this process views are clarified.27
(v) Fifth Circuit. In 1948, Judge Sibley, a former Senior Circuit Judge,
described the practice as follows:
We ordinarily hear argument Monday, Tuesday and Wednesday. On
Friday we have a conference touching the cases heard that week, and any
others held over from previous weeks. No written memorandum is usually
presented then. The discussion is informal, and we will likely agree on the
proper decision of over half the cases heard that week, and assign them for
the preparation of an opinion. Those in which there is doubt or
disagreement are held over for further investigation and discussion.
Opinions when written are marked with a concurrence separately by each
judge if entirely satisfactory. If not, objections are brought under discussion.
A separate concurring opinion sometimes results, or a dissent. Our present
practice is a great time saver, for we now have opinions filed in a majority
of our cases within thirty days after argument, and we have little need to
reread anything, since it is promptly acted on. I believe the quality of our
work has not suffered. * * *
25
Letters from the Hon. John Biggs, Jr., Chief Judge, September 11,
1948, and June 11, 1957.
26
Letters from the Hon. John J. Parker, then Chief Judge, July 27,
1948, and June 10, 1957.
 27 Letter from the Hon. Simon E. Sobeloff, Chief Judge, February 3,
We vote on a case ordinarily after conference and before opinion is
written, but each judge is at liberty to change his vote at any time before the
opinion is filed, or to call for further conference.28

The practice in the Fifth Circuit at this time is substantially the same,
according to Chief Judge Hutcheson, who writes:
I would add only this. On account of the increase of our business, we
hear arguments now on the first four days of the week. Because of the
practice which has existed now for some years past of more thorough and
complete study of the briefs and records before argument by all the
members of the court, we have a conference each day on the cases heard the
day before and any other cases upon which an agreement has not
theretofore been reached.29

(vi) Sixth Circuit. In 1948, the late Chief Judge Hicks described the
practice after argument as follows:
We invariably hold a judicial conference on all cases submitted. This
conference is held following the arguments on the day the cases are heard.
We do not waste time by having each judge prepare a memorandum but
exchange our views by oral discussion at a time we deem proper.
The case is assigned to one of our judges for the preparation of a
proposed opinion which he submits for the consideration and action of his
colleagues. The proposed opinion is discussed among the judges either in
correspondence or when we consider it necessary, further conferences are
held. The opinion before promulgation has been fully considered by each
judge and represents the opinion of all. If there is dissent, a dissenting or
separately concurring opinion is of course written.30
28
Letter from the Hon. Samuel H. Sibley, a former Senior Circuit
Judge, August 17, 1948.
29Letter from the Hon. Joseph C. Hutcheson, Jr., then Chief Judge,
September 30, 1957.
30 Letter from the late Hon. Xen Hicks, then Chief Judge, October 26,
 The practice today appears to be substantially the same.31
(vii) Seventh Circuit. Former Chief Judge Duffy advised that the judges
consult after the conclusion of the oral argument, a preliminary vote is
taken, and the writing of the opinion is assigned at that time. One proposed
opinion is prepared and circularized; quite often subsequent conferences are
held. The final vote is taken after circulation of the proposed opinion.32
(viii) Eighth Circuit. Former Chief Judge Gardner wrote:

The Judges invariably confer with each other at the close of the
arguments submitted each day and before the preparation of a memorandum
or opinion. The Judges also confer on all the cases at the close of the term.
At these conferences we determine on what cases, if any, we are clear what
the decision should be. On these we have no further conference. In all other
cases each of the participating Judges prepare memoranda. A later
conference is held to discuss the memoranda or conference opinions.
On the cases in which we are very clear, we vote at the conference held at
the close of the term; on others we vote after the memoranda have been
submitted and discussed at a conference. The cases are not assigned for
final opinion until after all conferences have been held.33

(ix) Ninth Circuit. The late Chief Judge Denman described the practice in
his court as follows: "Sometimes we confer immediately; sometimes there
is a time lag. * * * Sometimes there is a memorandum and sometimes not
prior to the assignment of the opinion. No case is assigned for opinion until
after a vote by all the participating judges at conference." 34
(x) Tenth Circuit. Judge Murrah, now Chief Judge, wrote:

The judges do invariably confer with each other on every case after
argument, and before preparation of a memorandum. The conference occurs
at the conclusion of the docket, and the judges have usually made a cursory
examination of the briefs and record. Each judge prepares a memorandum
on every case in which he sits, unless in rare instances where a conference
leaves no doubt of the conclusion and disposition of the case.
 31
See Institute of Judicial Administration, Appellate Courts—Internal
Operating Procedures—Preliminary Report (July 5, 1957), p. 13.
32
Letter from the Hon. F. Ryan Duffy, then Chief Judge, June 27,
1957.
33Letters from the Hon. Archibald K. Gardner, then Chief Judge, July
29, 1948, and June 10, 1957.
34Letters from the Hon. William Denman, then Chief Judge,
September 20, 1948, and June 28, 1957.
A conference is held usually from two to four weeks (depending upon the
number of cases heard) after completion of the docket. At this conference,
each case is considered in order, the judges reading their conference
memoranda, following which the case is discussed in the light of our study
and a conclusion reached. * * * The cases are decided at conference on
memoranda, unless our first conference leaves no doubt of the conclusion.
The chief judge or presiding judge assigns the opinions after the cases are
finally decided pursuant to argument and conference on memoranda. When
a case is assigned to a judge, he prepares a proposed opinion which is
circulated among those sitting for approval, suggestions or dissents before it
is finally filed as the opinion of the court. As a rule the writer of the opinion
has before him the three conference memoranda when he undertakes the
preparation of the opinion. Thus there can be no doubt of the views
expressed by all the judges in the conference memoranda, supplemented by
the discussion in conference on the controverted points involved. Our
opinions are very definitely not one judge opinions. They represent the
composite views of the majority, expressed of course in the language and
style of the writer.35
(xi) District of Columbia Circuit. Judge Fahy writes:
In our Court one case is argued in the morning and one in the afternoon.
The morning argument ordinarily ends about lunchtime. A conference on
that case is not likely to be held immediately after argument, though
sometimes a conference is then held. The general practice is for both the
morning and afternoon cases to be conferred upon after the afternoon
argument. The conferences are almost always held before the preparation of
a memorandum or opinion. Sometimes one or more of us has not
formulated even a tentative position at the conclusion of the argument, and
wishes more time before conferring. The practice in that event is to set a
definite time for a conference, so as to permit additional examination of the
record and briefs and further consideration by the judges. Occasionally, but
not usually, a memorandum will be prepared. The usual course of events,
however, is that the judge to whom the case is assigned drafts and circulates
an opinion. The draft opinions are circulated, and occasionally become the
subject of a conference as well. Suggestions are often noted on the draft,
and the draft is returned to the author with these suggestions. The members
usually vote at the first conference, after argument, and before the draft
opinion is circulated. The opinion is assigned at the conference at which the
case is decided.36
36
Letters from the Hon. Alfred P. Murrah, Circuit Judge, August 5,
1948, and June 13,1957.

Section 17. Court's practice after argument: Specialized

Federal Courts.
(i) United States Court of Claims. Judge Whitaker writes:
The judges of our court invariably do confer with each other after the
argument and before the preparation of the opinions. At this conference,
however, the discussion of the cases is not extensive. It is merely for the
purpose of gaining the first impression of the judges, so that a case may be
assigned for the writing of the opinion to a judge who will probably be in
the majority. This is done immediately after the recess of the court taken
after hearing arguments set for its monthly sessions.
If all the judges are in agreement, ordinarily only one opinion is
prepared, although concurring opinions are occasionally written. No other
formal opinion is written unless some judge dissents. At least some of our
judges write short memoranda for their own use after conclusion of the
argument.
After circulation of a draft of the opinion proposed for the opinion of the
court, there is always a conference, where the opinion is fully discussed,
after which a vote is taken.37
 (ii) United States Court of Customs and Patent Appeals. Judge Jackson, a
retired judge of this Court who has been sitting very frequently since his
retirement, advises that the judges invariably confer with each other on each
day following the day's hearings. A tentative vote is taken, but a
memorandum is usually circulated only by the judge who has been assigned
the opinion; this assignment is made prior to argument. After the draft
opinion is prepared, it is circulated and discussed.38
(iii) United States Court of Military Appeals. Judge Latimer states that
the judges "invariably confer with each other immediately after the
argument and before the preparation of a preliminary opinion." The judges
express their views, and the cases are then assigned. There is no formal
vote. The judge assigned to the case writes a preliminary opinion; this is
circulated; and the other judges then act.39
36 Letter from the Hon. Charles Fahy, Circuit Judge, June 7, 1957.
37 Letter from Judge Samuel E. Whitaker, September 26, 1957.
38 Letter from Judge Joseph R. Jackson, October 11, 1957.
39 Letter from Judge George W. Latimer, September 4, 1957.
Section 18. Importance to the court of the first impression
made by the advocate.
—The foregoing detailed review of the mechanics of the Federal
appellate process documents, underscores, and above all explains the
assertion made earlier in this chapter {supra, Section 10) that many, many
cases are won or lost on oral argument. Necessarily and inescapably, the
impression derived from the oral presentation is vital wherever and
whenever the briefs are not read before argument, or when the first vote is
taken immediately thereafter. And, whether the decision in a particular case
reflects what is basically a joint endeavor, or whether realistically viewed, it
is (at least initially) the determination of the single judge to whom the case
was assigned, the impression derived from the argument is bound to carry
over into the later and detailed study of the record and briefs. This is
particularly true when one considers the pressure of court calendars. Mr.
Justice Holmes noted, fifty years ago, that "one has to consider this element
of time. One has to try to strike the jugular and let the rest go." 40 And, not
too many years ago, the bar had occasion to get, from a Supreme Court
Justice since deceased, a revealing glimpse of "the few hours that can be
given to consideration of this case." 41 Thus the time element interacts with
the factor of appellate mechanics to add still further significance to the oral
presentation.
Only occasionally do judges steel themselves against the impression
obtained from the argument. One distinguished judge, of over twenty years'
appellate experience, wrote: "I am reluctant to reach conclusions at the
close of the oral argument lest my later consideration of the case be
influenced thereby." Another wrote that "because of the thoroughness with
which cases are reviewed in conference, * * * we do not attempt to obtain
impressions on the argument." Then, too, as another judge indicated,
"Personally I take in more through the eyes than through the ears."
The last three quotations are from letters written a decade ago by judges
of State courts of last resort. Undoubtedly, however, their views are held by
many Federal appellate judges.
More frequently, however, appellate judges endeavor to obtain a full
understanding of the case from the argument, and, when the presentation
has been clear, they succeed in doing so. It goes without saying that they are
very substantially assisted in their work when the argument enables them to
obtain such an understanding.
40 Holmes, Walbridge Abner Field [1899] in Speeches (1913) 75, 77.
41Jackson, J., dissenting in Jungersen v. Ostby if Barton Co., 335 U.
S. 560,572.

Section 19. Coincidence between first impression and final vote.

—I made inquiry of the judges who were good enough to contribute the
data collected in this chapter, and in the corresponding chapter of the earlier
edition, regarding the extent to which their impressions at the close of the
oral arguments coincided with their final votes, and have set forth below the
percentage of such coincidence.
By way of preliminary comment on the figures that follow, it should be
noted that, as one judge pointed out, "the case may be such that the same
result would follow a mere reading of the briefs."
By way of further preliminary, it should also be noted that an unclear or
ineffective argument will leave no impression save one of confusion. Thus,
one able and distinguished judge (whose name had better be withheld out of
consideration for the sensibilities of the bar of his jurisdiction) wrote in
these terms:
It may be heresy to say so, but in my experience, oral argument is not as
helpful as it should and could be if the advocates would reach the simple
point in the lawsuit and discuss it intelligently. The difficulty with the
average advocate is that he succeeds primarily in confusing the court rather
than clarifying the issues. Many times the logical answer falls into place
with a proper understanding of the facts and the issues. In sum, my answer
* * * is that most of the arguments leave me in doubt of the conclusion. I do
usually manage to gain a clear-cut understanding of the case, even if it be
necessary to pull it out of the lawyers.
Another distinguished and learned jurist, a personal friend of long
standing who, for a number of reasons, cannot be identified, went even
further:
Once in a while, I may confess, at the close of the oral argument none of
us seems to know what the hell the case is about; but I assume you won't
quote that literally in your forthcoming book on Appellate Advocacy.
Well, I do quote it literally—with his later permission—because every
appellate judge will admit privately that, after the worst of arguments, the
same thing happens in the best of courts.
Finally, a third preliminary warning: there are many close and difficult
cases that no judge will feel ready to decide without further and very close
study of the record and of the authorities even after model arguments on
both sides.
In the ordinary case, however, good oral argument is very important, far
more than even many able lawyers realize. I quote at random from a few
letters:
I think all our judges desire to hear oral argument, and that the argument
is helpful. When the lawyers appear to know their cases, and to have
examined the law well, it helps the judge to feel that he has heard pretty
much all that he should hear, and saves him much labor in independent
checking.
I am one of the judges whose mind is stimulated by argument. With a
prior study of the record and briefs and after the interrogation at argument,
which proceeds about as it does in the House of Lords, I have usually
reached the conclusion which I bring to the specific conference of the
judges, though sometimes intervening further study changes the conclusion
reached at the termination of argument.
For those of us who have not read the briefs in advance of oral argument,
that is the first information we receive about the case. Quite naturally the
argument is material.
For a while I read the briefs prior to argument, but I soon abandoned the
practice because I found it more interesting and helpful to read the briefs
after the lawyers on oral argument had breathed the breath of life into them.
I can read a brief much more profitably after my interest has been aroused.
* * * Oral argument is of great importance. As I said in the beginning, it
breathes the breath of life into the briefs. Without argument, a brief is a cold
and uninviting thing. The argument serves at least the purpose of arousing
the interest of the judge. If well done, they frequently create in the judge's
mind an impression that is not easy to remove.
It [oral argument] is often the decisive factor, and is fresh in the mind
when we vote in conference.
All judges of our courts think that oral argument is of great value to a
proper understanding of the case.
All judges consider oral argument of great importance in illuminating the
issues.
My own philosophy is that, if a case is worth appealing, it is worth
arguing. I think its principal value is in the interest and stimulation which it
creates as to the issues and questions, not in the answers which it provides.
It adds the only human touch there is to the dull impersonal processes of
appellate review. It enables me to see through a lot of strengths and
weaknesses which the stultified expression of a brief sometimes disguises
or leaves colorless. I enjoy the task of opinion writing much more in an
argued case than one submitted on briefs. And frankly, I think most judges
will write a better opinion under the direct challenge of an oral argument
from its psychological impact than otherwise.
It is almost a commonplace that every trial lawyer senses how there
generally comes a particular point in the proceeding where the scales have
been irrevocably tipped in favor of the side that ultimately prevails. Indeed,
when reviewing the transcript of testimony, it is very frequently possible to
pick the very turning-point of the trial, the moment after which the result
was never in doubt.
In many appellate arguments, it is similarly possible to pinpoint this same
instant. An appellate judge once said to me, "Majorities in our court pile up
very rapidly." Consequently the task of the appellate advocate in every
instance is to endeavor, while he is on his feet and while he can impress the
judges with the impact of his presentation, to persuade the judges that his
cause is the better one. To the extent that the legal authorities are balanced,
so that the decision could go either way, the impression made at the
argument may well be the determinative factor in inducing the court to
reach its ultimate decision in accordance with that impression. Accordingly,
to document this view, inquiry was made of appellate judges.
Apparently there is a closer coincidence in courts that deal largely with
private rather than public law controversies. In the first edition of this work,
in which were included data from thirtyeight State and Territorial courts of
last resort, in addition to data from Federal appellate courts, the percentage
of coincidence was very high; the largest group of judges wrote that their
final vote coincided with their impression at the close of the argument in 90
per cent or more of all the cases heard. This figure is in accord with what an
outstanding state judge revealed two generations ago to Mr. Charles Evans
Hughes, then teaching law at the Cornell Law School.42
42 Hughes, The Supreme Court of the United States (1928) 61-62: "I
suppose that, aside from cases of exceptional difficulty, the impression
that a judge has at the close of a full oral argument accords with the
conviction which controls his final vote. A Judge of the Court of Appeals
of New York told me some years ago that he had kept track for a time of
his impressions after the oral arguments and found that in ninety per
centum of the cases, although, of course, he reserved his vote until after a
thorough study, his final judgment agreed with his view at the end of the
 oral argument. This is so because the judges are conversant with their
special material, that is, the prior decisions of the court, and when they
apprehend the precise question to be decided they are generally not slow
in reaching a conclusion."
In the present edition, which is limited to Federal Appeals, the reported
percentage of concordance is substantially lower, varying from "a large
majority" and "usually" to several estimates of about 80%, with only one
judge placing the percentage of concordance at 90 per cent or higher.
Probably—for this cannot rise higher than informed conjecture—the
difference reflects a difference in subject-matter. Constitutional cases,
particularly, require reflection, and cannot always be safely decided on the
impression, however persuasive, that is made orally. The same is true of
cases turning on the interrelationship of complex statutory provisions. This
is not to say either that oral argument can be omitted in constitutional or
statutory cases, or that a substantial question can safely be left to an
insubstantial argument. In this field, also, "Few cases are won but many are
lost."
But, whether the issue is one that lends itself to virtual resolution at the
argument, so that further study will vary the judicial impression then
formed in only a tenth of the cases, or whether it is one of such complexity
that oral argument merely provides suggestive topics for judicial reflection,
the brief is vitally important also. There must be a brief, to summarize the
evidence, to set out record references, to collect citations, to discuss the
authorities— to do all that oral argument cannot do and at the same time to
buttress and support and substantiate the impression made by oral
argument. The inescapable fact of appellate work is that both brief and
argument are necessary, that neither can safely be omitted, and that, for
effective appellate work, both must reflect the best work of which the
advocate is capable.
Please note that I say "effective" rather than "successful" appellate work.
There is no way to guarantee success on appeal. Indeed, if there were, if
such a secret were known to me, I should hardly undertake to share it with
others.
In 1948, the Chief Justice told me that the judge to whom he referred
was the Hon. Francis M. Finch, then a member of the New York Court of
 Appeals, and the Dean—at least nominally—of the Cornell Law School.
All I can fairly or properly assert is that success on appeal is far more
likely to follow from effective than from ineffective briefs and arguments,
and that the remainder of this book will endeavor to show how to write
effective briefs and how to make effective oral arguments.
SECOND PART
BRIEFING THE APPEAL
 CHAPTER III

ESSENTIALS OF AN EFFECTIVE
APPELLATE BRIEF

Section 20. Introductory.

—An appellate brief is a written argument in support of or in opposition
to the order, decree, or judgment below. This part of the book explains how
to write a good appellate brief. The subject may seem at first blush to be as
dull as last night's dishwater, but it is a very important one indeed. When
the appellate court, as frequently happens, reads briefs in advance of
argument, your brief is the first step in persuasion. When a court reads
briefs only after oral argument, then, if it is persuaded to decide the case
your way after hearing the oral presentations, your brief becomes the peg on
which it can hang its collective judicial hat. And in a close case, where the
issue is uncertain and where the legal materials must be studied at
considerable length, the brief becomes the factor on which the entire case
will be won or lost.
This chapter covers the essentials of effective brief-writing, the next one
considers helpful techniques in writing and research, and the third discusses
the finer points and details of the process. It is a process that entails, in my
judgment at least, a quest for perfection—a quest pursued under the
pressure of deadlines and the demands of other cases, a quest perhaps
foredoomed to failure by the eternal fallibility of man.
The name of the practitioner, so the scholars say, is writ in water. Certain
it is that he has but few tangible mementos of his labors—his name in the
reports (misspelled, likely as not) and some bound volumes of briefs on his
shelves, gathering dust. (After all, briefs and the opinions they assisted in
shaping and influencing represent the preservation of his professional skill.)
For my part, I should like some day to write the dream brief, one wholly
free from misprints and from awkward expressions, which, on rereading
five years later, I would not want to change by so much as a comma (except
possibly to add citations to cases subsequently decided that confirm the
contentions made). To the extent that time and other cases permit, I still
strive for that goal—but without success up to now.
Such a standard of perfectionism in a brief is doubtless just that—a
dream. But there is nothing dreamy about an effective appellate brief—and
it is the effective rather than the impossibly perfect brief that is the subject
of this chapter.
For the rest, it is really not profitable to discuss an effective brief in terms
of abstractions. Too many otherwise excellent discussions of brief-writing
are of very little use except to the expert, simply because they are abstract;
and, ex hypothesis the expert does not need them. What follows, therefore,
will be concrete and detailed.
Most of the examples discussed in the pages that follow will be taken
from my own practice. That choice is dictated by convenience, not by
egocentricity. Of course there are plenty of other and, I have no doubt at all,
better examples. But the briefs discussed here are the ones that arose out of
the cases with which I have wrestled; they are the ones I have personally
sweated out, where I had intimate acquaintance with the details of the
problems presented and with the processes by which ultimate solutions for
those problems were reached. Nevertheless, although the examples chosen
are thus limited, I have sought to select, not esoteric specialties, but topics
of general interest and techniques of general application.
For extended research, the best sources are the libraries of courts, bar
associations, and law schools, many of which preserve the records and
briefs in appellate cases. There is no better guide to good brief-writing
anywhere than the examination and study of briefs written by leaders of the
bar and (by and large) by such Government agencies as handle extensive
litigation. Briefs in those categories are highly instructive as to form,
substance, and technique.

Section 21. List of the essentials of effective brief-writing.—

The really essential features are:
(a) Compliance with rules of court.
(b) Effective statement of the facts.
 (c) Good, clear, forceful English.
(d) Argumentative headings.
(e) Appealing formulation of the questions presented.
(f) Sound analysis of the legal problems in argument on the law.
(g) Convincing presentation of the evidence in argument on the facts.
(h) Careful attention to all portions of the brief.
(i) Impression of conviction that allays the reader's doubts and satisfies
his curiosity.
These essentials are discussed in order below. The details and the finer
points, i.e., those that help to make the difference between a really good
brief and one that is merely adequate, are considered in Chapter V.

Section 22. Compliance with rules of court.

—Compliance with rules of court is stated as the first requirement
because, even if you should succeed in writing that dream brief, the clerk
would not permit it to be filed if it exceeded the permitted length, or if it
violated in other obvious respects the rules of the court to which it is
tendered. So—first essential—familiarize yourself with the current rules of
the court in question, and comply with them. The word "current" is
advisedly italicized; failure to heed the obsolescence factor in rules of court
can be extremely dangerous.1
As has been indicated, this book is not a treatise on federal appellate
procedure. It does not discuss the question of what rulings are appealable—
and so does not consider the scope of the recent Act of Congress which, by
permitting interlocutory appeals in certain cases, alters the "final judgment"
rule that had been traditional in the federal judicial system since the
beginning.2 Similarly, there will be no discussion of the mechanics of
preparing the record on appeal, a process that is subject to constant change
as more and more circuits adopt the appendix system and provide for the
transmission of original papers to the appellate court.3
1For instance, the older form of petition for certiorari always
contained a separate supporting brief; beginning in 1931, the Solicitor
 General of the United States abandoned the supporting brief and filed a
combined document, but many private practitioners continued to use the
older form. In the 1954 revision of the Supreme Court's Rules, the Court
prescribed the Government form, and provided in its Rule 23 (3) that
"No separate brief in support of a petition for writ of certiorari will be
received, and the clerk will refuse to file any petition for writ of certiorari
to which is annexed or appended any supporting brief."
For a discussion of the reasons underlying this particular change, see
my paper on The Supreme Court's New Rules, 68 Harv. L. Rev. 20, at 23
and 57-58; the full article explains in detail the scope and purpose of the
1954 revision.
2 Act of Sept. 2, 1958, Pub. L. 85-919, 72 Stat. 1770, adding 28 U. S.
C. § 1292(b). See Wright, The Interlocutory Appeals Act of 1958, 23 F.
R. D. 199; Green and Green, A New Element in Federal Procedure:
Interlocutory Appeals Under the New Statute, 45 A. B. A. J. 681.
The District of Columbia formerly had a provision for special appeals,
by permission, from interlocutory decrees. Sec. 17-101, D. C. Code
(1940 ed.). But in the process of trying somehow to make the District of
Columbia resemble a State of the Union (cf. National Mut. Ins. Co. v.
Tidewater Co., 337 U. S. 582), so that the courts of the District would be
integrated into the federal judicial system as simply an eleventh circuit,
this useful provision was repealed. Act of May 24, 1949, c. 139, 63 Stat.
89, 110. Certain differences in criminal procedure still remain, however.
See Carroll v. United States, 354 U. S. 394. For two recent warning
cases as to timeliness on appeal and on certiorari, respectively, see
United States v. Schaefer Brewing Co., 356 U. S. 227, and Federal Trade
Comm. v. Minneapolis-Honeywell Co., 344 U. S. 206.
Moreover, there will be no attempt to discuss in detail the provisions
concerning briefs as these appear in the rules of Federal appellate courts.
For one thing, there is available the excellent text of Messrs. Stern and
Gressman on Supreme Court Practice/ while the rules of all Federal
appellate courts are conveniently collected in the USCA and in the Lawyers
Coop, edition of the Supreme Court Digest.5 For another, all of these rules
are subject to frequent and drastic changes, so that what was once proper
can become literally unacceptable overnight.6 Consequently, the only safe
procedure, whether you are new at the game or whether, although
experienced generally, you are writing a brief for a court in which you have
not previously practiced, is (a) to read the rules; (b) to check with the clerk
or a lawyer who is frequently before the particular court; and (c) to examine
and follow the form of some briefs that have already passed muster under
the rules in force.

3Since the first version of the present book was published, the First,
Second, and Fifth Circuits have shifted to the Appendix system from the
former and traditional print-everything method.
Effective July 1, 1960, the Fifth Circuit joined all the others in treating
the original papers as the record on appeal. Fifth Circuit, Rule 23; see
Stewart, Comments on the Original Papers Rule, 22 F. R. D. 211.
4Second edition, 1954, published by BNA, Incorporated. In order to
facilitate reference to the third edition, which is now in preparation, the
chapter as well as the page citation to the second edition is given in every
instance.
5The rules of all eleven Courts of Appeals will be found in one of the
volumes of 28 USCA and in vol. 18 of the L. ed. Digest.
The rules of the Court of Claims appear in another volume of 28
USCA and in 18 L. ed. Digest. The rules of the Court of Customs and
Patent Appeals will be found in 18 L. ed. Digest and in Appendix I to the
last volume of 35 USCA. The rules of the Court of Military Appeals
appear in 18 L. ed. Digest and in the first volume of 10 USCA, following
§ 867.
The rules of the Supreme Court appear in 17 L. ed. Digest and in a
volume of 28 USCA—but the annotations as they appear in the latter set
are incomplete and must be supplemented by independent research.
6 See note 1, supra.
Since the rules reflect the preference of your audience, an audience you
are seeking to persuade, you will be well advised to adjust your own pet
notions to those preferences. The judges adopted those rules in the view,
rightly or wrongly, that the provisions in respect of briefs will conserve
their time and energy.
Three points that are dealt with in the rules of most Federal appellate
courts must be carefully checked:
First. Some courts require a particular and frequently somewhat arbitrary
arrangement of briefs, with respect to color of cover,7 rigidly detailed
arrangement of matter,8 summary of argument and of the principal
authorities,9 and prescribed position for the statement of questions
presented.10
Second. Most clerks, reflecting the views of their courts, are quite fussy
about untimely filings.11
Third. An increasing number of Federal appellate courts limit the length
of the briefs that may be filed without prior express permission. This is now
true of all federal circuits except the Fifth.
There is no limit on the length of briefs in the Supreme Court of the
United States, except in one instance of narrow application.12 But "The
failure of a petitioner [for certiorari] to present with accuracy, brevity, and
clearness whatever is essential to a ready and adequate understanding of the
points requiring consideration will be a sufficient reason for denying his
petition." 13 Under earlier versions of the rule there were dismissals for
failure to file arguments that were "direct and concise." 14 And on one now
well-known occasion, briefs on the merits filed by eminent— and no doubt
well-compensated—counsel were stricken because they contained
"burdensome, irrelevant, and immaterial matter." 15
7 E.g., D. C. Circuit, Rule 17 (a) ; Seventh Circuit, Rule 16 (h).
8 E.g., Supreme Court, Rule 40 (1) ; D. C. Circuit, Rule 17; Third
Circuit, Rule 24; Fourth Circuit, Rule 10; Sixth Circuit, Rule 16; Eighth
Circuit, Rule 11 (b); Ninth Circuit, Rule 18 (2); Tenth Circuit, Rule 19
(3) .
9E.g., Supreme Court Rule 40 (1) (f); D. C. Circuit, Rule 17 (b) (3)
and 17(b) (8); Seventh Circuit, Rule 17(a) (3); Eighth Circuit, Rule 11(b)
(Fourth).
 10 E.g., Supreme Court Rules 15 (1) (c) (1), 23 (1) (c), 40 (1) (d); D.
C. Circuit, Rule 17(b) (1); Third Circuit, Rule 24(2) (b); Sixth Circuit,
Rule
16(2) (a).
11 Many circuits have rules to the effect that late filing constitutes a
ground for dismissing the appeal, and on occasion such dismissals are
noted in the Federal Reporter. In one instance, an appellant filed no brief
for three years!
Similarly, these instances have been noted in the course of currently
scanning the Federal Reporter: (a) Appeal dismissed, because record not
in shape for review, (b) Failure to print any evidence in the appendix, (c)
"It may be wondered how appellant could have expected the district
court to rule other than it did on the very meager record in this case."
It is believed that no useful purpose would be served by supplying
citations in these instances.
One additional but extremely important caution must be noted here: Bear
in mind the limitations on the reviewing powers of the appellate court that
apply to your particular case. A finding of fact made below is scrutinized by
different standards depending on whether it was made by a jury, or by a
judge sitting in what traditionally would have been a suit in equity, or by an
administrative agency.16 A fact found by the Court of Claims can be
reviewed by the Supreme Court only under stringent limitations—if at all.17
The Court of Military Appeals has not been granted power to review facts;
it can review only questions of law.18 The Supreme Court of the United
States, when determining cases brought to it from State courts, reviews only
questions of Federal law; it has no jurisdiction to consider purely state law
issues.19 Other examples will readily come to mind. But the basic
admonition is the same: The brief-writer must keep constantly in mind the
limitations under which his appeal will be considered.
12 A motion for leave to file a brief amicus curiae may not exceed 5
printed pages in length. Supreme Court Rule 42 (3) .
13 Supreme Court Rule 23 (4).
 14 See Zap v. United States, 326 U. S. 777: "The petition for writ of
certiorari in this case is denied for failure to comply with par. 2 of Rule
38 of the Rules of this Court. The brief filed in support of the petition is
not 'direct and concise' as required by that rule."
The original supporting brief had been 83 pages long. Thereafter,
issuance of the order denying the writ was stayed, 326 U. S. 692, and on
rehearing certiorari was granted. 326 U. S. 802. Zap's conviction was
affirmed, 328 U. S. 624, and a petition for rehearing was denied. 329 U.
S. 824. But, at the next Term, a second petition for rehearing was granted
and the indictment ordered dismissed, because of the absence of women
on the grand jury that had indicted Mr. Zap! 330 U. S. 800.
See also Stern and Gressman, Supreme Court Practice (2d ed. 1954)
ch. V (F), pp. 204-205, entitled "Length of the petition"; and note the
citations there to other instances of petitions being denied because they
were too long.
15 See Journal, U. S. Sup. Ct., Oct. T. 1928, p. 101: "It is ordered by
the Court that this case be restored to the docket for reargument on
January 14, 1929, with the same limitations as to the time of argument
and the number of counsel as in the original hearing; that complete new
briefs be filed, and that the old briefs heretofore filed shall not be used;
that the new briefs shall conform to the rules of this Court, be compact,
logically arranged with proper headings, concise, and free from
burdensome, irrelevant, and immaterial matter; * * *" The record
contained 2,023 pages, the briefs first filed extended to 1,924 pages, and
the briefs on the second argument contained only 789 pages. The case
was Gilchrist v. Interborough Rapid Transit Co., 279 U. S. 159. See
Frankfurter and Landis, The Business of the Supreme Court at October
Term, 1928 (1929) 43 Harv. L. Rev. 22, 57.
In all candor it must be added that power and consistency are not
synonymous in this field. Thus, the extent to which the Supreme Court will
disturb findings of fact when reviewing Federal cases cannot be realistically
stated in terms of rules. In some antitrust cases it has expressed a reluctance
to review the evidence,20 in others it has set aside findings that were
deemed "clearly erroneous" in the sense of Civil Rule 52 (a) ,21 while on
occasion it appears pretty much to have brushed aside the findings.22
Similarly, in denaturalization cases, very little respect is, in practice, given
even concurrent findings of fact made below,23 a circumstance which, when
that rule was first formulated, called forth the mordant comment that "The
finality which attaches to the trial court's determinations of fact from
evidence heard in open court and which ordinarily saves them from an
appellate court's intermeddling, should not be remembered in every case
save this one alone." 24
16See Stern, Review of Findings of Administrators, Judges and Juries:
A Comparative Analysis, 58 Harv. L. Rev. 70. Since the foregoing article
was published, in November 1944, the Administrative Procedure Act and
the TaftHartley Act have "expressed a mood" that requires closer judicial
scrutiny of administrative findings. Universal Camera Corp. v. Labor
Board, 340 U. S. 474, 487.
17The older rule, rigid to the point of injustice, was that the Supreme
Court's review of Court of Claims cases was limited to questions of law,
and did not even extend to mixed questions of law and fact. United
States v. Esnault-Pelterie, 303 U. S. 26. The decision in that case was
followed by the Act of May 22, 1939, c. 140, 53 Stat. 752, which
expanded the review to include questions of fact, substantially on the
basis of the traditional equity appeal. However, the very specific terms of
the remedial statute were omitted in the 1948 revision on the ground that
they were "unnecessary"!—with the result that no one now knows
whether the Supreme Court has any power to review factual findings by
the Court of Claims. See United States v. Penn Mfg. Co., 337 U. S. 198,
207-208, note 4.
18Art. 67 (d), Uniform Code of Military Justice, now 10 U. S. C. §
867 (d) .
19See 28 U.S.C. § 1257; Stern and Gressman, Supreme Court Practice
(2d ed. 1954) ch. Ill (G), pp. 94-102; Robertson & Kirkham, Jurisdiction
of the Supreme Court of the United States (Kurland & Wolfson ed. 1951)
Part I, passim.
20 United States v. Oregon State Medical Soc, 343 U. S. 326.
21 United States v. United Gypsum Co., 333 U. S. 364.
 22 United States v. du Pont ir Co., 353 U. S. 586.

Section 23. Effective statement of the facts; why necessary.

— In many respects, the Statement of Facts is the most important part of
the brief; hence the priority given it in the present discussion. The
circumstances that numerous other matters may be required by rule of court
to precede the Statement of Facts in the printed brief does not in any sense
warrant postponing its consideration.
The greatest mistake any lawyer can make, after he has written a fine
brief on the law, is to toss in a dry statement of facts and send the thing off
to the printer. When I first came to the bar (now more years ago than I like
to recall), my chief—Eugene A. Kingman, Esq., of the Rhode Island Bar—
used to insist that that was the common error made by the young men in the
office—and everything I have seen since then has served only to confirm
the truth of his admonition. I owe it to him to acknowledge that I have
profited by his wisdom, and learned the great lesson that, in writing briefs,
the facts should first be studied, mastered, sweated over—and written out
into an acceptable draft before the rest of the brief is even touched.
For facts are basic raw materials of the legal process, as all great lawyers,
from ancient worthies down to the great judges of modern times, have
recognized. Ex facto jus oritur—the law arises out of the fact—is a well-
worn maxim of old, to the point of being hackneyed. But it expresses a
fundamental truth that, within the memory of most of us, Mr. Justice
Brandeis regularly put into practice. As Professor Freund, one of his former
law clerks, has written:
23
Schneiderman v. United States, 320 U. S. 118; Baumgartner v.
United States, 322 U. S. 665. Notwithstanding Knauer v. United States,
328 U. S. 654, the Schneiderman-Baumgartner rule seems still to be law.
Nowak v. United States, 356 U. S. 660; Maisenberg v. United States, 356
U. S. 670. The same strict standard is applicable to expatriation cases.
Gonzales v. Landon, 350 U. S. 920.
24 Stone, C. J., dissenting in Schneiderman v. United States, 320 U. S.
at 25 Freund, On Understanding the Supreme Court (1949) 50.
His belief in the primacy of facts was apparent even in the process of
preparing an opinion. However much he encouraged his law clerks to
present the results of their legal research in a form which might be directly
useful in drafting an opinion, he took on himself the burden of drafting the
statement of facts. This was his private assurance that he would not be
seduced by the fascination of legal analysis until he had grounded himself
in the realities of the case as they were captured in the record.25
While the advocate's task and function differ from those of the judge, in
that the advocate must persuade while the judge has only to decide, the
foregoing excerpt emphasizes the vital significance of bringing the facts of
the case to the judges' attention with a view to shaping their decision.
Remember, courts are not automatons, and judges do not cease to be
human beings however much they may—as they very properly should—
steel themselves against emotional bias. The constantly repeated
demonstration that "hard cases made bad law" is living proof of that
proposition. The real importance of facts is that courts want to do
substantial justice and that they are sensitive to the "equities." Consequently
the first objective of the advocate must be so to write his Statement of Facts
that the court will want to decide the case in his favor after reading just that
portion of his brief.

Section 24. Effective statement of the facts; how to formulate

and write it.
—First of all, when you write a Statement of Facts, you must remember
that you are endeavoring to reach another person's mind. You must also
remember that any person's acquisition of knowledge is a cumulative
process. Therefore, you must state the facts of the case in your brief as you
yourself would wish to read them—the introductory summary first, the
details later— in order to get a clear, consecutive, understandable picture of
what the case is really about.
A lawyer stating the facts of his case is telling a story, a story the court
should be able to accept and understand as it reads along, without having to
supplement your narrative by its own independent efforts. Or, to use a
different metaphor, the lawyer stating the facts is painting a picture—and
those who look at that picture should not be troubled by the details of how
the artist mixed his colors. To the extent that the judicial reader may want to
check the facts of your story, or the art-lover those of the picture, the record
references will supply the necessary assurance that what has been depicted
is real and not imaginary. (See Sections 44 and 80, below.)
Therefore, always avoid the lazy kind of summary that says, "The
witness Quackenbush testified that ;that ;that ; that ," and so on ad infinitum
and ad nauseam. Any literate stenographer can do that; most lazy lawyers
do it; but, as it isn't very helpful to the court and it doesn't forward the case,
the good lawyer will not do it.
Similarly, it is a mistake to assume, as many lawyers apparently do, that
it is necessary to set out the testimony in the same order in which it was
presented at the trial. The trial lawyer must take one witness at a time, and
develop what witnesses X, Y, and Z know about incidents A, B, and C.
There is generally no other way in which he can get that evidence into the
record. But the appellate lawyer, in writing the statement of facts, should
marshal his evidence according to topics, logically developed, and not
according to witnesses. True, it takes more work, which is why so often it is
not done. But the logical topical arrangement is really the only effective
one.
No matter how long or short a Statement of Facts may be, it should
always be written in such a way as to advance the cause of the party on
whose behalf it is prepared. It must not argue or editorialize; its strength lies
in selection and juxtaposition, without of course ever appearing to involve
the irrelevant.
In many instances, you can add immeasurably to the effectiveness of
your Statement of Facts by simply quoting the opinion below, varying it
only by adding appropriate record references inclosed in square brackets. If
you represent the appellee, this treatment gives the Statement of Facts the
additional and very substantial weight that attaches to findings made by the
tribunal that saw and heard the witnesses. If you represent the appellant, the
same technique gives you the freedom from distracting minor issues that
comes from saying that, accepting fully the facts found below, you pitch
your entire case on questions of law. Or, otherwise stated, use the opinion
below supplemented by references to the record when you are appellant as
to the law or when you are appellee as to the facts.
 Frequently a Statement of Facts will necessarily be long, particularly
when the record is long. In that event it should not be written as one
continuous screed. Instead, it should be divided, through the use of
subheadings, so that the judicial reader can more easily grasp the relevance
of what he reads.28
26 Here are examples of subdivisions of the Statement of Facts in two
reasonably recent cases, one criminal, the other civil.
(a) Elkins v. United States, 364 U. S. 206:
A. The initial seizure and the original State proceedings, through the
granting of both motions to suppress.
B. The Federal prosecution and the Federal motion to suppress.
C. State court injunction against State officers.
D. Application to Ninth Circuit for writ of prohibition.
E. Petitioners' trial in United States District Court.
F. State contempt proceedings after conclusion of Federal trial; the
Federal injunction.
G. The decision of the court below.
(b) Swift & Co. v. United States, 343 U. S. 373:
A. The economics of direct shipments of livestock.
B. Means open to appellant for receipt of direct shipments of livestock.
(i) Consignment to Omaha Packing Co. sidetrack—$50,000 annually for
additional trucking.
(ii) Consignment to Union Stock Yards—$129,000 annually for services
neither appropriate to nor desired for livestock already owned by the
consignee.
(iii) Consignment to own sidetrack—$254,000 annually for switching
charges.
C. Scope of the switching charge in question.
(i) Inapplicability to livestock consigned to Union Stock Yards.
 (ii) Inapplicability to other commodities delivered at Swift's sidetrack.
(iii) Switching charge not dependent on distance between Chicago
Junction yards and line-haul carriers' break-up yards.
D. Transportation of livestock to consignees in the stockyards district.
(i) Route followed and switching performed.
(ii) Percentage of mixed trains; incidence of trains composed of one and
two cars of livestock.
(iii) Transportation of livestock to Swift's Omaha Packing Co. plant.
E. Congestion on Chicago Junction tracks.
F. Factors other than volume of traffic contributing to congestion on
Chicago Junction tracks.
(i) Decline in Chicago Junction's motive power since its lease by appellee
New York Central.
(ii) Effect of 1946 labor agreement.
(iii) Operations of line-haul carriers on Chicago Junction tracks.
(iv) Refusal of Chicago Junction to grant additional trackage rights.
(v) Union Stock Yards rules directed at dead freight.
G. Covenant in Chicago Junction lease and its invocation by Union Stock
Yards. (Continued on p. 48)
When the Statement of Facts is long, it is even more necessary to write it
so that the judicial reader's interest will never flag, but will always be held,
and will constantly be carried in the direction at which the advocate is
aiming. That endeavor must never be permitted to sag, even at the end,
when the proceedings in the court below are being discussed.
It is a mistake to write simply, "The court below affirmed (R. 74)," when
you could have written, "The court below affirmed on the ground that the
evidence amply justified the jury in finding petitioner guilty as charged (R.
74)."
Frequently the Statement of Facts can be, as it were, neatly buttoned up
by a juicy quotation from the findings or opinion below. If you are
appealing, summarize or quote the opinion below when it seems pretty
obviously wrong, or summarize or quote from the dissenting judge, or both.
If, on the other hand, you are for the appellee, set out the conclusions or the
apt quotation from the majority opinion, or do the same for the dissent
when it seems unsound on its face.
In short, write your Statement of Facts from the beginning to end, from
the first paragraph to the last, with this one aim always before you: to write
your Statement of Facts so that the court will want to decide the case in
your favor after it has finished reading just that portion of your brief.
It is doubtless tiresome to reiterate all this. But the simple fact is that the
fault most universally found in Statements of Facts is that they are too dry,
that they do not make the most of what the record affords, and that in
consequence they do not advance the case.

Section 25. Effective statement of the facts; how to use the

atmospheric trimmings.
—Once the basic arrangement of the Statement of Facts has been blocked
out, with proper topical introductions and with the facts arranged in logical
order—and generally the chronological order is the most logical one—it is
time to consider the next step, which is, succinctly, to incorporate the
atmospheric trimmings.
H. Evidence bearing on effect of granting appellant's prayer for relief.
(i) Effect of appellant's shipments alone.
(ii) Position of the other packers.
(iii) Evidence as to congestion and disruption.
I. Proceedings before the Commission and in the court below
Here the task is to present the facts, without the slightest sacrifice of
accuracy, but yet in such a way as to squeeze from them the last drop of
advantage to your case—and that is a task that in a very literal sense begins
with the first sentence of your Statement of Facts and continues through the
last one (in which you set forth the opinion or judgment below) .
 Examples of how to do it and of how not to do it will be considered later;
here will be set forth some general admonitions that should be heeded.
(a) First and foremost, you must be accurate. You owe that duty to the
court, and, equally, you owe that duty to your client. And, for the same
reason, you must be candid. If the court finds that you are inaccurate, either
by way of omission or of affirmative misstatement, it will lose faith in you,
and your remaining assertions may well fail to persuade. See Section 44,
below, for a discussion of the application, in this connection, of the maxim
Falsus in uno, falsus in omnibus.
A Federal appellate judge recently had occasion to remark that "Skilled
advocacy is not a substitute for operative facts though that art may supply
emphasis and delicate nuances of evidence clearly established by the
record." 27
That statement marks, about as well as it can be drawn in the abstract, the
line between the proper use of atmospheric trimmings and the improper use
of imperceptible slanting that results in intentional misstatement. It is just as
much the duty of the advocate to present his acts favorably as it is his duty
to present the law forcefully. It is not in any sense "cute" to wring every
advantageous fact out of your record—just so long as the full Statement of
Facts is fair, honest, and accurate. I emphasize both aspects because—as a
matter of actual fact—quite a number of appellate judges seem to feel that
any advice to stress the favorable facts is tantamount to urging deception as
an aid to winning on appeal. Any such reaction is the result either of a
failure to understand the office of advocacy, or of a failure to analyze one's
own thinking—or of both.
The mark of really able advocacy is the ability to set forth the facts most
favorably within the limits of utter and unswerving accuracy.
27
Finnegan, J., concurring in Lusk v. Commissioner of Internal
Revenue, 250 F. 2d 591, 595 (C.A.7).
(b) Second, grasp your nettles firmly. No matter how unfavorable the
facts are, they will hurt you more if the court first learns them from your
opponent. Draw the sting of unpleasant facts by presenting them yourself.
To gloss over a nasty portion of the record is not only somewhat less than
fair to the court, it is definitely harmful to the case.
 If you fail to heed this injunction, if you omit salient and significant but
unpleasant facts, you may be sure that the opposition will rub your nose in
them. Consider, for example, the execution done by the following excerpts
from an answering brief on a briefin-chief that omitted pertinent facts.
(Proper names have been changed.)
We have documented the United States Attorney's argument on the
defense of extortion with record references, not only in order that it might
be considered against the context of the evidence in the case, but also
because the Smiths' brief falls considerably short of reflecting all of the
pertinent facts.
(1) The Smiths start by saying that Milton Smith and Morris Brown
voluntarily enlisted in the Air Corps (Br. 7). They fail to state that Sam
Smith had them volunteer for the Air Corps in order to avoid having them
drafted and assigned to the infantry (R. 184, 276-277).
(2) The Smiths admit that their concern, the Paris Thread Corporation,
paid the Berg Company for the uniforms furnished to Jones and other
officers of the First Bomber Command (Br. 9). They fail to state that, at
Sam Smith's request, the Berg Company's books were later altered to show
that the officers themselves paid for the uniforms (R. 190-195; Govt. Ex. 5,
6, 7, R. 192, 193, 195, 1219, 1221, 1223).

(5) The Smiths quote Sam Smith as urging Jones to leave the boys at
Westover and Bradley Fields with the Airborne Engineers because they
were happy there (Br. 13, 15). "I said 'Warren please let's forget all about
the kids, they are very happy, they met a nice captain, a nice sergeant.'... I
said Warren I told you once before please let's forget all about the kids, they
are happy and I am happy." (R. 1228, 1229.) The Smiths do not say in their
brief, nor did Sam Smith tell the United States Attorney, that in fact he
approached Colonel , Colonel , Major , and Captain in his attempts to have
the boys transferred out of the Airborne Engineers, and that he fainted when
Colonel told him that nothing could or should be done (supra, pp. 16-18).
(6) The Smiths place Jones in New York on the morning of November
25, urging Sam Smith to come to a decision on whether he will pay $5,000
to keep the boys from being sent to the Pacific (Br. 16, 35). But their own
motion for new trial, on which they rely to establish error here (Br. 33-36),
shows that Jones was in Washington on the night of November 24/25, that
he left Washington at 9:30 A.M. November 25 and flew to Connecticut, and
that he did not arrive at La Guardia Field, New York, until 4 P.M. on that
day (Motion, p. 48; U.S. Br. 82-83).
(7) The Smiths twice state that the order transferring the boys from the
Air Commando Group at Goldsboro into the Air Transport Command in
Wilmington was dated November 29 (Br. 17, 35). This is literally true (R.
1218). But they fail to state that this transfer was directed by a letter from
Headquarters Army Air Forces dated November 25 (R. 123, 1218), and that
this letter was written in consequence of Jones' telephone call to Miss
Graham on November 24 (R. 256-257). Consequently, even if, as the
Smiths now assert (Br. 16), the $5,000 was paid not later than November
27, it is still clear that, when the payment was made, Jones had put it out of
his power to take Milton and Morris to the Pacific.

(c) Never argue or editorialize in your Statement of Facts. Always be

straightforward; indicate the conflict in the evidence, gain whatever
advantage you can out of the order of its presentation, but save your
argument for the body of the brief. The temptation to slip in a sly remark is
sometimes pretty strong; let it go into an early draft, if you must, and get
what fun you can out of it; but be sure it is out of the final product.
In short, present your facts accurately, candidly—but always favorably,
and always strive to make the most favorable impression, short of actually
arguing, with the facts that you have.28
28 The reply brief from which the excerpts below are quoted passed
over my desk a dozen years ago, but what was then said still warms the
cockles:
"An appellant does not often use much space in a reply brief to praise
a brief for the appellee. Here, then, though we think commendation due,
a few words may seem enough.
"In general, the appellee's brief recites the evidence fairly. Of course,
quite properly, the statement is of that most favorable to the Government,
but there is little at which to quibble. * * *
 "The argument seems to us to say all that can be said for the
Government on the points raised, and to say it with great skill; e.g., how
much more effective the connotations of the words in the brief * * * than
those in the indictment * * *.
"We do not suggest that the choice of words employed in the brief for
the appellee goes beyond the license of an advocate. * * *
"Our praise of the appellee's brief is, therefore, tempered with a note
of caution. Its art is in its color, not applied in crude daubs, but with
restraint that sometimes requires scrutiny to perceive its fundamental
flaws. * * *" 29 Cf. United States v. C.I.O., 335 U. S. 106.
Section 26. Examples of effective and ineffective Statements of
Facts.
—It remains to illustrate the foregoing generalizations with specific and
concrete examples. Full Statements of Facts, from briefs filed in a variety of
situations, were set out in Chapters 10-13 of the former version of this
work, while those appearing in Chapter XII (below, pp. 397-421) illustrate
the problem discussed in the next section. The examples in the present
section are shorter excerpts selected to illustrate particular techniques.
(a) Courts dislike to referee ideological contests, or to be asked to umpire
disputes that exude even the faintest suggestion of mutual zeal to get a
question decided,29 or to assist the litigant who goes to law to vindicate a
principle rather than a substantial legal right, or to take advantage of a
situation at the expense of the public. The problem in such cases is to make
the court aware of what is going on—which obviously cannot be done by
calling one's opponent a strike-suitor or his cause a cooked-up case.
Usually, in such a situation, the facts of record speak for themselves, and all
the advocate need normally do is to set them out, without comment.
An example that comes to mind is that of a bitterly contested proceeding
involving a tract of public land that was of no possible value except as a
source of rock for a nearby breakwater. If the claimant had succeeded in
obtaining it, the neighboring municipality would of necessity have had to
pay handsomely for the stone it wanted. In order to convey the desired
impression, the brief for the public official commenced its Statement of
Facts as follows:
 Whaler Island is a small rocky island in the harbor of Crescent City,
California, some 3.65 acres in extent (R. 17-18). It is without value for
agricultural purposes, is not adapted to ordinary and private occupation, and
is of utility only in connection with the improvement and development of
the harbor (R. 31) .
This island is the land for which the appellant Lyders seeks a patent (Bill,
par. V, XVIII; R. 4, 15-16) .30
In that case, the matter was dropped with its mere statement, and was not
further pursued. There was nothing to argue about, because the
circumstances in question were atmospheric only, and legally irrelevant.
30Lyders v. Ickes, 65 App. D. C. 379, 84 F. 2d 232. For earlier stages
in the Whaler Island litigation, see West v. Lyders, 59 App. D. C. 122, 36
F. 2d 108, and Wilbur v. Lyders, 61 App. D. C. 202, 59 F. 2d 877; for the
sequel, see Lyders v. Del Norte County, 100 F. 2d 876 (C. A. 9), certiorari
denied, 308 U. S. 562.
In other cases, however, facts going to the infirmity of a party may
become relevant, in which event they are properly taken up in subsequent
argument. The problem is to distinguish between the Statement of Facts and
the Argument, to keep the first absolutely straightforward, and to put the
editorializing and characterization where they belong, namely, in the
portion of the brief that is headed "Argument."
Examples of the second category arise in situations where review by a
higher court is discretionary,31 and where accordingly the appellate court
must be convinced, not so much that the decision below is correct or
incorrect, but rather that the question is important and is one that deserves
or requires review. In such a situation any fact tending to show that a
litigant is more interested in obtaining an advisory opinion than in
vindicating his legal rights becomes not only relevant but important and, it
may be, controlling.
A case arising out of a World War II removal order, but coming up
sufficiently long after V-J Day to be of essentially academic interest,
illustrates the point. The plaintiff had been individually ordered excluded
from the sensitive West Coast area after having been convicted of
conspiracy to commit sedition.32 He sued the Commanding General for
damages, a judgment in his favor was reversed on appeal, and he petitioned
for a writ of certiorari to review the result. The Statement of Facts in the
Commanding General's brief opposing the petition therefore pointed out:
31 The prime example of discretionary review in the Federal system is,
of course, certiorari in the Supreme Court; but there are others.
(a) An appeal to the Supreme Court, though theoretically taken as of
right, is in fact discretionary by reason of the device of dismissal for
want of a substantial federal question in cases appealed from state courts,
and of affirmance without argument in cases appealed from federal
courts. Supreme Court Rule 16(1) (b) and 16(1) (c); Stern and Gressman,
Supreme Court Practice (2d ed. 1954) ch. VI (F), pp. 233-238, 243-245;
see my paper on The Supreme Court's New Rules, 68 Harv. L. Rev. 20,
50-51, and particularly the comments of Chief Justice Warren quoted at
p. 51. For a more recent formulation, see the address by Mr. Justice
Harlan, Manning the Dikes, 13 The Record of the Assn. of the Bar of the
City of N. Y. 541, 545-546.
(b) The bulk of the jurisdiction of the Court of Military Appeals is
discretionary. Art. 67 (b) (3), Uniform Code of Military Justice, 10
U.S.C. § 867 (b) (3).
(c) The District of Columbia has a discretionary jurisdiction to review
decisions of the Municipal Court of Appeals for the District of
Columbia. Sec. 11-773, D. C. Code (1951 ed.) ; and see the rules
governing such review in the pocket part to the volume in 28 USCA that
includes the U. S. Courts of Appeals Rules.
32 Distinguish the mass exclusion orders considered in Hirabayashi v.
United States, 320 U. S. 81, and Korematsu v. United States, 323 U. S.
214.
The complaint asked damages in the sum of $3500, but subsequently
petitioner filed a waiver of all damages in excess of $100 (R. 83, 291, 296,
303).
In the portion of the General's brief headed "Argument," he adverted to
this fact and argued that
* * * The circumstance that, after bringing suit for $3500 (R. 11), petitioner
subsequently stipulated that he would waive all damages over $100 (R. 83,
291, 296), strongly suggests that the object of this proceeding for damages
was not so much redress for injuries sustained as the obtaining of abstract
pronouncements from the courts as to respondent's authority. This he cannot
have * * *.
Certiorari was denied,33 and the factor just mentioned may well have
contributed to that result.
(b) It is a commonplace that a very bad man may have a very good case.
But judges are human, they want to do substantial justice, and therefore in
close cases they are, more or less unconsciously (depending on the
individual judge), bound to be influenced by the character of the litigant,
particularly when he appears before them as a crusader.
Without doubt, the Jehovah's Witnesses in the 1940's spearheaded much
civil rights litigation, and a good deal of constitutional law was written—
and rewritten—around their activities. It is not necessary to collect at this
point either the cases or the commentaries thereon or even to set out at
length the situation out of which the next example arises. Suffice it to say
that two members of the sect, Kulick and Sunal, were separately classified
as I-A for the draft. When they failed to report for induction, they were
indicted, and at their separate trials neither was permitted to attack his draft
classification; each was convicted, neither appealed.
Shortly after their convictions, the Supreme Court held, disagreeing with
some 40 circuit judges in the process, that, in criminal prosecutions under
the Selective Training and Service Act of 1940, defendants did have a right
to attack the correctness of their draft classifications. Estep v. United States
and Smith v. United States.34, Accordingly, Kulick and Sunal separately
petitioned for habeas corpus, alleging that they were detained without
authority of law—on the ground of denial of the right to defend at their
original trials. One circuit held that habeas corpus lay in these
circumstances, another that it did not, and both cases came before the
Supreme Court.
33Wilcox v. Emmons, 67 F. Supp. 339 (S.D. Cal.), reversed sub nom.
DeWitt v. Wilcox, 161 F. 2d 785 (C.A. 9), certiorari denied, 332 U. S.
763.
 The facts were that Kulick had originally been classified as I-A, i.e.,
available for immediate military service, and then had been reclassified as
IV-D, viz., minister of religion. Thereafter, to quote from the Statement of
Facts in the Government's brief,

Nothing further occurred until August 23, 1944, when the local board
was indirectly informed by one of respondent's neighbors, who was
identified, that respondent spent most of his time at home, except when
working as a professional model, in which capacity he sometimes posed in
military uniform. Apparently as a result of this information the local board
reclassified respondent I-A. He then requested a hearing * * *. Respondent
appeared before the local board on August 30, 1944, and at the conclusion
of the hearing the following notation was made as a minute entry in
respondent's file:
When registrant appeared it was learned after interrogation that he was an
artist model—and has been photographed in military uniform; when further
questioned regarding C. O. in military uniform his reply was evasive.
The board continued respondent in I-A * * * .

The other individual, Sunal, had originally claimed exemption as a

conscientious objector; in his questionnaire, he had stated that his
occupation was "automotive carburetor and electrical mechanic," and that "I
am not a minister of religion." He was classified I-A. Five days after that
classification was made, Sunal for the first time claimed classification as a
minister of religion. Hearings and appeals ensued, and he was finally
classified in IV-E as a conscientious objector. Thereafter, failing to report,
he was tried and convicted, and served a term of imprisonment. All these
facts were set forth in the Government's brief. Then, as has already been
noted, Sunal petitioned for habeas corpus, challenging the validity of his
conviction for failing to report for induction in respect of a new
classification made after his release from confinement, on the ground that
he had not been permitted to attack his new draft classification at that
second trial.
34 327 U. S. 114.
 The Supreme Court held that the rulings by the convicting courts in the
two cases, though erroneous in the light of the subsequent Estep-Smith
decision, did not deprive either Kulick or Sunal of their constitutional
rights, and that accordingly, since they had failed to appeal, they could not
thereafter review their convictions on habeas corpus. Sunal v. Large and
Alexander v. United States ex rel. Kulick.^ The Court's opinion did not
discuss the particular facts of the two cases; it said:

The local boards, after proceedings unnecessary to relate here, denied the
claimed exemptions and classified these registrants as I-A. * * *
The same chief counsel represented the defendants in the present cases
and those in the Estep and Smith cases. At the time these defendants were
convicted the Estep and Smith cases were pending before the appellate
courts. The petition in the Smith case was, indeed, filed f(.ere about two
weeks before Kulick's conviction and about a month after Sunal's
conviction. The same road was open to Sunal and Kulick a\ the one Smith
and Estep took. Why the legal strategy counseled taking appeals in the
Smith and Estep cases and not in these we do not know. Perhaps it was
based on the facts of these two cases. For the question of law had not been
decided by the Court; and counsel was pressing for a decision here * * *.36

Can it therefore fairly be said that, in deciding the dry and technical
question of the scope of habeas corpus, the Supreme Court was entirely
uninfluenced by the circumstance that, at the very least, the bona fides of
the individuals seeking release from confinement was open to question?
(c) Similarly, the most important function of the Statement of Facts in a
brief in a criminal case is to indicate something of the party's guilt or
innocence. If you represent the prosecution, your aim must be to convey the
impression that the convicted man is just as clearly guilty as he can possibly
be; if you represent the defendant, you must strive to show that he has been
greatly wronged. This is true in both instances not only when the question
concerns the sufficiency of the evidence to support the verdict, but whatever
the question is, quite regardless of the formal issues raised on the appeal.
"Courts delight to do substantial justice."
 353 32 U. S. 174, affirming Sunal v. Large, 157 F. 2d 165 (C.A.4), and
reversing United States ex rel. Kulick v. Kennedy, 157 F. 2d 811 (C.A.2).
36 3 32 U. S. at 175, 181.
A striking instance in which this technique was employed is the sordid
Restaurant Longchamps tax fraud case, which arose around the end of
World War II. Three of the convicted persons appealed without success and
then petitioned for a writ of certiorari. At the trial and again in their petition
these defendants indicated that there was no denial of the tax frauds
charged, and raised only issues arising out of their alleged disclosures prior
to the Treasury investigations, and out of the use of their admissions and of
the books of their corporations. Notwithstanding the admissions of the tax
frauds thus made in the petition, the Government's Brief in Opposition to
the granting of certiorari discussed the facts relating to the fraud as fully as
if the issue had been the sufficiency of the evidence in the Circuit Court of
Appeals rather than the importance of petitioners' questions for purposes of
review of their case by the Supreme Court. Indeed, the Statement of Facts
was simply lifted verbatim from the Government's brief in the Circuit Court
of Appeals. All the shabby details were set out, the evidence relating to the
alleged disclosures was discussed at length, and the facts on the credibility
of one of the defendants and on his contradiction were stated in extenso.
(This lad had made the grave mistake, inter alia, of testifying to a meeting
with the Collector of Internal Revenue, alleged to have taken place at the
precise time when that worthy was in fact meeting with eight very
substantial and prominent fellow-citizens in connection with the affairs of
the Governor Smith Memorial Fund.) Moreover, the findings of the district
court, to the effect that the alleged disclosures were neither full nor frank
nor voluntarily made, were not simply summarized, but were quoted in full.
The consequence was, not so much that the Brief in Opposition was able
to brush off the questions sought to be raised as never having been
reached,37 but that there was necessarily generated a feeling in the mind of
any reader that, whether the questions were reached or not, these petitioners
were so clearly guilty of such a particularly outrageous crime that jail was
doubtless much too good for them.38
37"The petition in this case presents arguments resting and depending
on an assumption which is entirely hypothetical, viz., that petitioners
 made a voluntary disclosure amounting to a confession which was
induced by a promise of immunity. That assumption is quite without
support on the present record, in consequence of which the questions
sought to be presented are never reached."
(d) Emotions that sway a jury will frequently backfire in an appellate
court, or at least prove notably ineffective. But while most appellate judges
cannot be charged with being, in the current idiom, bleeding hearts, they are
still human beings, and thus are necessarily shocked by anything in the
nature of unjustified cruelty.39 If, therefore, the facts of your case are such
as will cause a revulsion of feeling on the part of a juryman, they are bound
to have at least a modicum of similar effect on the members of an appellate
court.
The recent case of Hatahley v. United States 40 involved, on its face, cold
jurisdictional and legal problems: Were rights under the Taylor Grazing Act,
a federal law,41 affected by a state statute regulating abandoned horses? 42
Had there in any event been compliance with the state statute's terms? 43
Did the Federal Tort Claims Act44 cover intentional trespasses within the
scope of federal agents' authority? The injuries for which redress were
sought were the carrying off of horses and mules belonging to the plaintiffs,
who were Navajo Indians.
Actually, the depredations were committed with extreme brutality, so
much so that an observer commented, "I didn't know they were still doing
that to Indians." Here is how the facts were set forth in petitioners' brief:
The animals were rounded up on the range and were either driven or
hauled in trucks to a Government-owned or controlled corral 45 miles
away. Horses which could not be so handled were shot and killed by the
Government's agents on the spot. The remainder were accorded brutal
treatment: the horses were so jammed together in the trucks that some died
as a result, and in one instance, the leg of a horse that inconveniently
protruded through the truck body was sawed off by a federal employee, one
Dee P. Black. (Fdg. 23, 25; R. 33-35.) Later, the animals were taken in
trucks to Provo, Utah, a distance of 350 miles, where they were sold to a
glue factory and horse meat plant for about $1,700—at around 3 cents a
pound (R. 93, 293) —no part of which was received by petitioners (Fdg. 24;
R. 34) .
 38 United States v. Lustig, 163 F. 2d 85 (C.A. 2), certiorari denied, 332
U. S. 775, rehearing denied, 332 U. S. 812. For a sequel that undoubtedly
eased the pain somewhat, see Lustig v. United States, 134 C. Cls. 351,
138 F. Supp. 870.
39 See Francis v. Resweber, 329 U. S. 459, holding that neither double
jeopardy nor cruel and unusual punishment is involved in executing a
death sentence after an accidental failure in equipment had rendered a
previous attempt at execution by electrocution ineffective. The dissent
was written by a justice who more normally voted the other way in
similar constitutional and criminal cases, but who appears to have been
sufficiently impressed by the rather grisly facts of the first attempt at
execution to set them forth in full. 329 U. S. at 480-481, note 2.
40 351 U. S. 173.
"Now 43 U.S.C. §§ 315-315r.
42 Utah Code Ann./l953, c. 47-2.
43 The trial judge held that there was no compliance with its terms.
Conclusion of Law 2, R. 42-44; oral opinion, R. 413-417; No. 231, Oct.
T. 1955.
44 28 U.S.C. §§ 1346 (b), 2671-2680.
It may well be that the circumstances above detailed made no impression
whatever on the members of the Court. But if those facts led any of the
judges to the conclusion that, for such a wrong, there must be a remedy,
then setting out the facts as quoted necessarily contributed to the holding
that "These acts were wrongful trespasses not involving discretion on the
part of the agents, and they do give rise to a claim compensable under the
Federal Tort Claims Act." 45

Section 27. Use of the Statement of Facts to advance one's case;

illustrative examples.
—The application of the foregoing techniques will perhaps be more
clearly perceived by examining, not examples from different cases, but
comparative instances from successive stages of the same case.
 In Von Moltke v. Gillies,46 the question raised in a habeas corpus
proceeding was whether petitioner had freely, intelligently, and knowingly
waived her right to the assistance of counsel, and whether she had freely,
intelligently, and knowingly pleaded guilty. Her contention was that she had
been induced to plead guilty by an F.B.I, agent who, so she alleged, had, by
misinforming her as to the law, convinced her that she would be found
guilty if she went to trial. The habeas corpus judge had found against her,
the circuit court of appeals had affirmed, and she sought certiorari.
The difficult feature of the case, from the Government's point of view,
was the dissenting opinion in the C.C.A., which had espoused and believed
the petitioner's story.47 Moreover, the F.B.I, agent had not been a good
witness; his denials left something to be desired.48 The strong points of the
case, for the Government, were the favorable findings of the habeas corpus
judge; the strong indications in the record that petitioner's story had
originally germinated in the otherwise unfertile atmosphere of the House of
Correction; and the fact that petitioner was, throughout, repeatedly
contradicted, by other witnesses as well as by herself.
45351 U. S. at 181. For sequels, see United States v. Hatahley, 257 F.
2d 920(C.A.10), certiorari denied, 358 U. S. 899; United States v. Ritter,
273 F. 2d 30 (C.A.10), certiorari denied, 362 U. S. 950.
46 332 U. S. 708.
47 See 161 F. 2d at 116-121.
The Brief in Opposition to the petition for certiorari was written under
the pressure of meeting a deadline,49 and in the rush incident to the end of
the particular term of court. The Statement of Facts which that document
contained did not, therefore, succeed in dispelling the unfavorable
impression produced by the dissenting opinion below, and accordingly
certiorari was granted.
Preparation of the Government's brief on the merits, however, could
proceed in the comparative leisure of the summer "vacation." In the new
Statement of Facts, the relevant facts in the record were first divided into
undisputed and conflicting evidence, and the latter heading was broken
down into some seven separate incidents.
 Those incidents were taken up, witness by witness, and were set out in
such a way as to emphasize the innumerable instances wherein petitioner
contradicted herself or was contradicted by others. The Statement of Facts,
which had covered some 15 pages in the Brief in Opposition, was expanded
to 29 pages in the brief on the merits, and almost all the material that had
originally been relegated to footnotes was brought up into the text. The
result was a far more convincing presentation, and although the
Government did not win the case in the Supreme Court, it did not lose it
either. Three justices voted to affirm, four to reverse and to set petitioner
free, and the other two were of the opinion that they could not recreate the
crucial incident from the dead record, and so voted to remand to the district
court "for further proceedings with a view to a specific finding of fact
regarding the conversation between petitioner, and the F.B.I, agent, with as
close a recreation of the incident as is now possible." 50
48 Here was the critical portion of his testimony:
"Q. And did you during that discussion use an illustration about a rum
runner?
"A. Well, I heard Mrs. Von Moltke say that, and since she did I have
been trying to recall, and I cannot remember such an illustration. "Q. I
see.
"A. But it is quite possible that Mrs. Von Moltke's memory is better
than mine, and I may have used such an illustration."
49 Under the Supreme Court Rule then in effect, only twenty days
were allowed, after the service of the Petition, for filing the Brief in
Opposition; and at that time it took not less than seven days to get a brief
through the Government Printing Office.
The Statements of Facts in both briefs must be carefully studied for an
adequate appreciation of the techniques involved. Logically, they should
both be set out at this juncture. But, since both are rather long, it has
seemed more convenient to print them in Chapter XII, below.

Section 28. Matters that must be avoided in a Statement of

Facts.
 —Below, in Section 83, under the heading of "Things You Cannot Afford
to Do," are collected four outstanding horribles in brief-writing: inexcusable
inaccuracy, unsupported hyperbole, unwarranted screaming, and
personalities and scandalous matter.
Most of these unpardonables crop up in portions of the brief other than
the Statement of Facts; and, at least in my experience, even the most
unprofessionally unprofessional inaccuracy is generally met with in the
argument portion of the brief (after the writer's ardor has really been
inflamed).
Subject to what is said—and collected—in Section 83, a common fault in
many Statements of Facts is the tendency to argue and to editorialize. These
are faults, because a court reading a statement wants to feel that it is getting
the facts, and not the advocate's opinion, comments, or contentions.
Here are some examples of argumentation included in Statements of
Facts, taken quite at random, and followed by comments:
(a) It is perfectly apparent from a cursory reading of the decision of the
Commission (see particularly pp. 489a-499a) and of the Court (R. 597-601)
as against the relevant portions of the testimony (61a182a) that the decision
of both Commission and Court is based upon the social philosophy inherent
in the "no profit to affiliates" theory, and not on the record facts which the
Commission should have found or at least considered and passed upon in
this particular case. In other words, we do not have an administrative
finding of relevant facts, but refusal to consider such facts because of the
adoption of standards created ad hoc by the Commission itself.
50 When the case was heard again, the trial judge disbelieved
petitioner, and discharged her writ of habeas corpus; and his ruling was
affirmed on appeal, the same judge still dissenting. Von Moltke v. United
States, 189 F. 2d 56 (C.A. 6). Once more the Supreme Court granted
certiorari, this time affirming the judgment below by an equally divided
court. Von Moltke v. Gillies, 343 U. S. 922.
(b) Only three of these customers were called by the Commission to
testify and give evidence at the hearings. The other customers did not
appear at the hearing and no evidence as to them was adduced except the
figures set forth in the appendix, which were taken by the Commission's
agent from the petitioner's books and records. Therefore there is no
complete picture of the transactions between them and the petitioner and no
sufficient basis for determining main issues with respect to their
transactions. Apparently the Court below has assumed that the practices
employed by registrant in dealing with these other customers were the same
as those followed in dealing with the customers who testified.
(c) There was substantial, affirmative and uncontradicted evidence that
the actual purpose of the accumulation of profits was wholly other than that
of avoidance of surtaxes. There was no affirmative evidence that surtax
avoidance was a motivating purpose.
The foregoing examples are perfectly proper argumentation, and, had
they been included as part of the Argument in each instance, would have
been thoroughly effective. All were, however, found in Statements of Facts
—where they have no place.
Here are some examples of editorializing:
(d) It is to be observed that petitioners did not move for a directed verdict
in the trial court, but they sought a review by the United States Circuit
Court of Appeals for the Circuit of the entire record upon the proposition
that there was such a lack of evidence in this cause as to make the
convictions of the petitioners a miscarriage of justice. It is also to be
observed that the petitioner, Richard Brown, was represented in the trial
court by counsel other than those now appearing for said petitioner.
Example (d) is editorialized rather than strictly argumentative, but
illustrates a tendency on the part of some appellate practitioners to hold trial
counsel responsible for the state of the record. It is a natural enough
tendency, for all too often new counsel on appeal is called in to do a
pulmotor job on the stretcher case left at his door. But, on appeal, you are
bound by the record that has been made, be it good or bad. If it is good,
fine; if it isn't, you are stuck with it, wart and all, and you help neither
yourself nor your case by intimations, however veiled, to the effect that you
would have tried it differently had you been trial counsel.
(e) Petitioner's effort to show the reason for the juggling of his
classification and unwarranted denial of his rights by the local and appeal
boards, was thwarted by the rulings of the trial court (App. 16) in denying
G 's counsel the right to pursue the inquiry on cross examination of the
Secretary of the local board, the Government's witness, upon whom it relied
to prove its case against defendant G .
* * * His testimony proved not only such fact [that the Order was void]
but his good-faith action, honest conviction of his stand in the premises,
which motivated him in his actions in answering the charge of the
indictment; questioning the validity of the Order to Report, want of
jurisdiction of the board, and no need to report for induction as a condition
precedent to challenge such order.
(f) Frank O. and Andrew E. Wilson, doing business under the trade name
of Lone Star Oil Company, a partnership, own and operate a chain of seven
retail gasoline filling stations in the City of , Texas. And they also own the
real estate on prominent business corners of the City of , upon which they
have erected magnificent structures and equipment to house their business.
Examples (e) and (f) illustrate the fault of editorializing and of using
characterizations in the Statement of Facts. In (e) the characterizations
would probably have been relevant if included in the Argument, but what
difference did it make in (f) whether the structures were magnificent or just
hovels? The case involved either taxation or an alleged OPA violation—my
own notes on it are unclear—but the nature of the structures was irrelevant
in either situation.
Finally, by way of extreme instance, there is an example taken from the
Statement of Facts in a brief arguing a draft evasion case; further
explanatory comment, other than to point out that the capitalization
appeared in the original, is surely unnecessary:
(g) Petitioner has advanced the principle of law of self defense as
applicable to the facts of this case. A defendant who fails to co-operate with
government BECAUSE HE BELIEVES THAT IT MEANS THE LOSS OF
IMMORTALITY, even to the extent of refusing to take human life, should
be allowed the legal defense which in all the courts of the land permits the
TAKING OF HUMAN LIFE when the defendant is in fear of losing his
mortal life. Constitution of the United States, Article I Amendments fully
justifies this extension of the law of self defense to such a situation as this,
since it guarantees the free exercise of religion. The inherent powers of the
courts to re-define all defenses to apply to new situations should also be
sufficient authority of the Court herein to so extend the law of self defense.
Section 29. Good, clear, forceful English.
—Good English is the next essential, though I shall do little more than
state it. I don't pretend to be an expert on syntax or rhetoric, and so far as I
am personally concerned, I write, for better or worse, entirely by ear. But
the observations that follow may be suggestive, and possibly helpful.
A brief should be well written, but to be effective it must be clearly
written. You are endeavoring to reach the minds of others, and therefore
what you say must, above all, be clear. Clarity is more important in a brief
than literary excellence.
Next, what you write should be grammatical. A lawyer is a professional
man, in whom poor English should not be tolerated. I know that a good
many brief-writers do not (perhaps because they can not) use good English,
but there is really no excuse for any such performance. Offhand I should
say that the only justified departure from the rules of grammar for a lawyer
is the split infinitive, "to specifically perform." In that instance alone, the
English Department is of no help to the equity practitioner. A lawyer should
also be at pains in his briefs, whatever may be the case in pleadings and
contracts, to minimize legal formalisms such as "the said," "hereinbefore,"
"thereinafter," and the like.
Nor is it any longer a sign of learning to encumber a brief with excerpts
from the Latin—unless they are very pat indeed. But, with the decline of the
classics in the secondary schools and colleges, and a waning of the notion
that the citizens won't think a man a lawyer unless he constantly spouts
legal jargon in his everyday speech, there is much less of that nowadays
than there was at the turn of the century or even before the First World War.
The Statement of Facts, as has already been indicated at length, should be
straightforward, without embellishments and with a minimum of adjectives.
It is not until the Argument portion of the brief is reached that you change
the pace, so to speak, of your prose, and (if I may mix a metaphor by
mechanizing it) really turn on the steam. From then on out, you argue!
Of course, it is well not to press too hard at your own weak points, for
frequently the skill of the advocate consists in skating deftly where the ice
is thin (or even where there isn't any ice at all). A good many situations will
call for what has been aptly called "walking violently on eggs."
But you can't write an Argument without arguing. Consequently
statements that might well be preceded in law review articles with the
professorial "it would seem" must be introduced in briefs by "it is therefore
abundantly clear," or, at the very least, by "it necessarily follows." 51
Moreover, when you really get to the heart of the case, don't be afraid to
hit hard, and don't hesitate to write a fighting brief. There is nothing in
brief-writing quite so fallacious as what, for want of a better term, I like to
call the striped-pants complex, namely, the notion that it is somehow
undignified to make a strong, hard-hitting argument. That idea is really on a
par with the view that an advocate should be impartial, or has any business
being so—as to which see Sections 7 and 8, and the example there dissected
and displayed. You simply can't write an argument on a la-di-da basis or
after the manner of that well-known Milquetoast, the soft-toned shortstop.
Style is of course an individual matter. It may be that the Frenchman was
right who said that the style is the man. Certainly there is full opportunity in
this field for the exercise of individual and personal judgments, since many
different styles of writing may be equally effective. There is a wide range of
styles in which good argumentation can be written, a range as broad as the
personality spectrum of effective advocacy, and within that range it would
be silly dogmatism to insist on any particular manner of expression.
Literary style after all is a form of art, and in the latter field we may all
disclaim technical competence and yet know what we like. That
circumstance alone makes style such a difficult matter to discuss.
Ideally, the raw material for such a discussion in the present field would
be a library full of briefs, with representative examples of good, bad, and
indifferent extracted and compiled within the covers of a single casebook.
But there are no such casebooks, and libraries thus equipped are necessarily
inaccessible to many practitioners.
51 It is said in Kalven, Law School Training in Research and
Exposition, 1 J. Legal Educ. 107, 117, "We believe the law-review note is
a more fundamental form of legal exposition than the brief." The answer
to this proposition in the present connection is that, whether or not the
law review note may constitute more fundamental exposition, it is not
 argumentation; and a brief must, above all, be argumentative. Compare
the example of nonargumentative brief-writing considered in Sections 7
and 8, above.
Therefore, I have selected my examples of good, clear, forceful English
from opinions of former members of the Supreme Court, which are of
course readily available in the reports. The portions of such opinions that
follow the statement of the facts and issues are generally written in a more
or less argumentative style, and thus are helpful here; and it may be noted
that, since dissenting opinions are normally written with more zeal (if not
indeed with somewhat less restraint), dissents are an even more valuable
source of good and forceful legal writing.
In terms of familiar opinions, my own view—and I put the matter in
terms of personal preference because it very largely comes down to that—
my own view is that the most effective argumentative style is one like that
of the late Chief Justice Hughes, with possibly a touch of Holmes for the
snappers at the ends of significant passages. There is something powerful
and inexorable about a Hughes opinion—I cite a few at random in the
footnote.52 Read those opinions, note how their reasoning develops
logically step by step, get the feel of the pulsating, rhythmical, irresistible
argument rolling on towards its predetermined end, and you will appreciate
the force of really argumentative writing. Chief Justice Stone also wrote
some good, strong opinions, notably in dissent. Those collected in the
footnote seem to me outstanding, and to merit reading and rereading.53
Other judges have their admirers also—but, I repeat, these are personal
preferences. Cardozo, J., wrote beautiful English, but his opinions are too
limpid, too lyrical, and on occasion too discursive to constitute the most
effective argumentation. Holmes' opinions are generally too epigrammatic
for brief-writing, except as to the snapper sentences; a judge can rest on
neatly phrased assertion, but an advocate needs something more. The judge
needs only to decide; the advocate must persuade.
Some lawyers and judges urge that a brief should always contain short
sentences. It is true that excessively long sentences result in turgidity. The
force of Chief Justice White's later opinions was very perceptibly marred by
this quality, though assuredly they rolled onward to powerful conclusions.54
But the constant use of short sentences to the exclusion of longer ones
imparts a staccato quality to prose writing that also detracts from the final
results. Mr. Justice Brandeis' opinions always seemed to me to fall into that
category; they were, however, crystal-clear and wholly devoid of verbal
embroidery.55
52E.g., Sterling v. Constantin, 287 U. S. 378; Retirement Board v.
Alton R. Co., 295 U. S. 330, 374 (dissent); Morehead v. N. Y. ex rel.
Tipaldo, 298 U. S. 587, 618 (dissent) ; United States v. Wood, 299 U. S.
123; Labor Board v. Jones & Laughlin, 301 U. S. 1; Apex Hosiery Co. v.
Leader, 310 U. S. 469, 514 (dissent).
53E.g., United States v. Butler, 297 U. S. 1, 78 (dissent); Morehead v.
N. Y. ex rel. Tipaldo, 298 U. S. 587 (dissent); Helvering v. Gerhardt, 304
U. S. 405; United States v. Darby, 312 U. S. 100; United States v. Local
807, 315 U. S. 521, 539 (dissent); Schneiderman v. United States, 320 U.
S. 118, 170 (dissent) ; Girouard v. United States, 328 U. S. 61, 70
(dissent).
As I say, I'm no English professor, and I don't expect my literary
preferences in argumentative writing to coincide with those of others. I can
only repeat that good, clear, forceful English is an essential; that in this
particular activity one learns by doing (particularly with a more experienced
person at hand to edit one's early doings) ; and that there is a lot of pay dirt
in the dusty volumes of other folks' briefs on the library shelves.

Section 30. Argumentative headings.

—Headings should always be argumentative rather than topical or even
assertive. For instance, write "This suit is barred by laches because brought
twenty-five years after the issuance of the original certificate" rather than
"This suit is barred by laches." The first gives the argument in a nutshell,
the second does not—though certainly the second assertive heading is
infinitely more effective than the merely topical "The question of laches."
Similarly, say "Appellant had notice of the defect and therefore is not a
holder in due course" in preference to "Appellant is not a holder in due
course" or to "Appellant's contention." Otherwise stated, employ the
technique of the American newspaper headline rather than that of the
English: our journalists say "Bums Down Braves, 9-2," whereas theirs write
"Test Match at Lords."
Perhaps the greatest disservice an appellee's lawyer can do his case is to
write, "Replying to Appellant's Point I." This is not even topical, and in
consequence is completely blind, giving the judicial reader no clue
whatever to the substance of the argument. It follows that the "Replying to"
type of heading is completely unhelpful—and it is just as bad when used in
an appellant's reply brief.
54E.g., Minneapolis ir St. Louis R. R. v. Bombolis, 241 U. S. 211;
Selective Draft Law Cases, 245 U. S. 366.
55E.g., Wan v. United States, 266 U. S. 1; New State Ice Co. v.
Liebmann, 285 U. S. 262, 280 (dissent) ; Louisville Bank v. Radford, 295
U. S. 555; Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 341
(concurring opin56 Harris v. United States, 331 U. S. 145.
Always set out your contentions affirmatively—and for maximum
effectiveness formulate your headings so that they will be argumentative.
Subheadings should likewise be argumentative rather than topical or
merely assertive, primarily because all are collected in the index at the
beginning of the brief, and are thus frequently read first by any judge who
wants to get the argument in abbreviated compass.
You lose a lot, therefore, if your subheadings are not precise and specific.
If your headings and subheadings are properly argumentative, your
argument starts with the index at page i of the brief, and the court will not
need to go beyond that point to grasp the essence of your position.
Collecting all the headings and subheadings in the index has also this
important incidental advantage: it discloses whatever lack of uniformity is
quite likely to have crept into them in the course of your writing, and so
provides a convenient opportunity for strengthening revisions (and, it may
well be, for catching misprints and other infelicities).
Perhaps this is as good a place as any for the admonition that a main
heading should never be followed by just a single subheading. If a
proposition cannot be divided into more than one part, it is merely being
restated. Therefore, if you find yourself unable to work out more than one
subheading, the difficulty is that your main heading is improperly
formulated; you had better rewrite it. (I know that the old books on
argumentation used to prescribe something that went like this: "Oscar is
entitled to rights and privileges, for: (a) Oscar is a citizen." My point is that
effective argumentation in a brief requires that this proposition be rewritten
either as "Oscar is a citizen and is therefore entitled to rights and
privileges," or as "Oscar is entitled to rights and privileges because he is a
citizen." The first is probably preferable, and it certainly is so if Oscar's
citizenship is the real issue.)
Here is an example of some argumentative headings and subheadings,
taken from the index page of the prevailing brief in what for a while was a
fairly celebrated case,56 that are sufficiently detailed and precise to give the
reader the very heart of the party's contentions immediately:
I. It has always been held that one of the incidents of a lawful arrest is the
right to search the premises under the control of the person arrested for the
instrumentalities of the crime of which he is accused, and that such a search
is a reasonable one within the Fourth Amendment.
A. The cases in this Court prior to 1927 establish that the right to search
premises for instrumentalities of crime is an incident of a lawful arrest
therein.
B. There may be an exception permitting search of the premises for
evidentiary papers incident to a lawful arrest in cases where a crime is
actually being committed in the presence of the arresting officers.
C. The Go-Bart and Lefkowitz cases have been uniformly understood to
hold that a search of premises incident to a lawful arrest has as wide a scope
as a search authorized by a search warrant, and is limited to the objects for
which such a warrant could issue.
D. The right to search premises under the accused's control for
instrumentalities of crime as an incident to his lawful arrest is of ancient
origin, and its recognition by the courts represents not an encroachment on
constitutional protections but rather a reaffirmation of their original
boundaries.
You may read all this and disagree, and certainly a series of later
decisions substantially whittled down the propositions established in the
particular case 57—at least for a while.58 It may well be that it has since
been overruled sub silentio.59 No matter; the point made here is not whether
the quoted assertions still represent the law, it is that, after reading those
detailed, specific, and argumentative headings, you know—at once—
precisely the substance and scope of the argument.
Here is another example, likewise taken from a prevailing brief in a case
decided some years back,60 that also sets forth a party's arguments, in this
instance in step-by-step progression:
57 See McDonald v. United States, 335 U. S. 451; Johnson v. United
States, 333 U. S. 10; Trupiano v. United States, 334 U. S. 699; cf. United
States v. DiRe,3S2 U. S. 581.
58 The Trupiano case was specifically overruled by United States v.
Rabinowitz, 339 U. S. 56, just a few years later. See, however, Jones v.
United States, 357 U. S. 493.
59See Kremen v. United States, 353 U. S. 346, the facts in which
should be compared with those in Harris. But see Abel v. United States,
362 U. S. 217.
60 United States v. Baltimore ir Ohio R. Co., 333 U. S. 169.
I. The railroads' refusal to make direct delivery of livestock to sidings
located on their line is a breach of their legal duty to the public as common
carriers, which the Commission has power to remedy by its order.
A. If Track 1619 were owned by the New York Central, then clearly the
Interstate Commerce Act has been violated, and the Commission's order
would be unassailable.
B. In view of Section 1 (3) (a) of the Interstate Commerce Act, the
situation is not altered in any respect by the circumstance that Track 1619 is
owned by a non-carrier.
C. Nor is the situation altered by reason of the New York Central's
contract with the Stock Yards which provides expressly for discrimination
against livestock, since common carriers cannot by contract relieve
themselves from their duties to the public.
 D. The Stock Yards' right, if any, to compensation from the New York
Central for the use of its land has no bearing upon the validity of the
Commission's order requiring the railroads to perform their duties to the
public.
There were additional points, but the foregoing was the nub of the
argument. Here again, the reader is left in no possible doubt as to the
substance or the progression of the propositions presented.61
Here is another example, this time of reasonably argumentative headings,
but of only ineffective topical subheadings:
I. Section 266 of the Judicial Code, requiring the hearing and
determination by three judges of applications for certain interlocutory
injunctions, is not applicable to this case. Therefore the three-judge trial
court convened pursuant to section 266 was without jurisdiction to issue the
interlocutory injunction and abused its discretion in doing so. No state
statute involved.
As to order of administrative board or commission. v. discussed and
distinguished.
Section 266 inapplicable where order affects only particular district and is
of limited scope. Conclusion.
III. This action is a suit against the State of , of which the Supreme Court
has exclusive jurisdiction awarded in section 233 of the Judicial Code.
Being without jurisdiction for this reason, the trial court abused its
discretion in granting the interlocutory injunction. Statutes.
611 thought that the case just cited, which arose out of a dispute at the
Cleveland Stock Yards, should control a similar subsequent controversy
at the Chicago Stock Yards; but the Court disagreed. Swift & Co, v-
United States, 343 U. S. 373.

Officers' authority as to state court suit.

Grounds for state court suit.
As to agreement discharging liability.
This is a suit against the State.
 Quite apart from any substantive aspects, the main headings are
weakened by being divided into two sentences, and of course the force of
the subheadings is almost completely lost by being rendered topical; the
reader does not and cannot obtain any clue to the party's position from
reading them.
Specifically," v. discussed and distinguished" would have been much
stronger had it been rendered as, "v. is not controlling because * * *," going
on to indicate briefly why the case is not controlling.
"This is a suit against the State" is assertive rather than topical, but, since
it does not go on to say why the suit is one against the state, it is not
argumentative.
"Section 266 is inapplicable where order affects only particular district
and is of limited scope" is the best of the lot—but it would have been even
better if instead of "where order" there had been written "because the order
here." Then the subheading would have read, "Section 266 is inapplicable
because the order here affects only a particular district and is of limited
scope"—and then it would have been a good, thumping, argumentative
sentence.
Perhaps it should be added, with reference to the main heading under III,
that if the trial court was really without jurisdiction, its issuance of an
interlocutory injunction would have been somewhat worse than an abuse of
discretion—the latter expression being one that implies the existence of
jurisdiction. It is therefore not a good heading. A heading should, at the
very least, be consistent with itself, and should not generate judicial
disbelief or resistance on a first reading.
Let me take another example of how not to do it:
II. The Rule of Jurisdiction Invoked by the Court Below Is Not
Unconstitutional.
A. The Intent of Congress.
B. The Constitutional Considerations.
C. The Application of the Constitutional Considerations to This
Case.
 D. The Effect of Petitioners' Contentions.
Every one of the subheadings is blind, giving the reader no clue whatever
to the substance of the argument; and the principal heading is only
assertive. It falls short of being argumentative because it does not explain
why the rule being appealed from is not unconstitutional—a matter of more
than passing importance, since that was the vital issue in the case.
Possibly there is one situation where merely topical headings are
justified, namely, when you are simply analyzing the authorities, and are
presenting them in a spirit of sweet reasonableness, i.e., where it doesn't
make much difference which of several lines the court takes since they all
lead to the same result. But with perhaps that single exception, failure to set
off the various stages in the Argument portion of the brief with full and
detailed argumentative headings detracts materially from the brief's
effectiveness.
One additional comment, suggested by a learned friend, may well be
added: The reader should never need to refer back to the heading in order to
grasp the full sense and meaning of the opening sentence. As phrased by
him:
The text of an argument ought not to depend upon a heading or
subheading for an understanding of its meaning. My theory of a heading or
subheading is that it ought to be something that the reader can take or leave
alone. (I apply the same rule to footnotes.) In reading a brief, a book, or an
article, I am annoyed, after I have got into a sentence, to find that I must
refer back to a heading to understand the sentence. I test my own work by
asking myself whether the text is complete and is understandable without
reading either the headings or the footnotes. If so, then I consider the
headings and the footnotes as aids which will assist in the reading of the
text, but which will not impede that reading.62

Section 31. Appearing formulation of the questions presented.

—Another essential of an effective appellate brief is the appealing
formulation of the questions presented on the appeal— and "appealing" in
this connection means the phraseology that will most effectively impel the
reader to answer the question posed in the way the writer wants him to
answer it. Consequently this is an extremely important item, particularly
since by stating well the question presented you are really choosing the
battleground on which your litigation will be contested.
62 Letter from Owen Rail, Esq., of the Chicago Bar, May 12, 1949.
In a number of circuits, the rules provide that the questions presented
must be set forth at the outset of the brief, ahead of any other portion.63 The
Supreme Court similarly requires that the questions presented appear early
in briefs, petitions for certiorari, and jurisdictional statements.64
The formulation of the question is of particular importance whenever
review is discretionary, the most usual example being certiorari in the
Supreme Court.65 There the grant or denial of the writ frequently depends
in very large measure on the framing of the question. On behalf of the
petitioner you help to induce review by making the question appear
important and the result below wrong. Contrariwise, when the object to be
obtained is the denial of review, the question should be framed in such a
way as to minimize the importance of what is involved.
Two forms will fit almost every case. The first and more usual form is to
use a sentence beginning with "whether"; e.g., "Whether post-mortem
declarations are admissible." The second, usually appropriate only for the
more complicated cases, is to state the salient facts and then to add, "The
question presented is whether in these circumstances the later proceeding is
barred by the earlier judgment." This second method may also be
appropriate whenever the simple statement of the question does not make
the case appear to be sufficiently interesting or appealing.
In using the first form, the essential technique, generally, is so to load the
question with the facts of the particular case or with the relevant quotations
from the statute involved, fairly stated, that you can almost win the case on
the mere statement of the question it presents.
Rules of court that ask for a statement of the question presented to be
"expressed in the terms and circumstances of the case but without
unnecessary detail" are not violated by such an inclusion of relevant facts.66
Other rules appear to require the questions to be stated "in the briefest and
most general terms, without particulars of any kind." 67 The brief-writer
must of course comply, but even a short and generalized formulation can be
made thoroughly appealing.
63 District of Columbia Circuit, Rule 17(b) (1); Third Circuit, Rule 24
(2) (b); Sixth Circuit, Rule 16 (2) (a).
64 Supreme Court Rules 15 (1) (c) (1), 23 (1) (c), 40 (1) (d) (1).
65 See note 31, supra, p. 53.
66Supreme Court Rules cited in note 64, supra; District of Columbia
Circuit, Rule 17 (b) (1), and see the official note to the latter in the
original.
Some judges seem to feel that advice to phrase a question appealingly is
tantamount to a suggestion for deceiving the court, so that by slanting the
question, or even by twisting it out of shape, a busy tribunal may be led to
reach an answer favorable to the party. Here again, this is a view that
reflects misapprehension of the purpose and content of advocacy.
Let me repeat the caveat already set forth: fairly stated. If an excess of
zeal leads you to state the question unfairly or inaccurately, the whole thing
will boomerang and explode in your face— or, perhaps more to the point, in
your client's case.
Here are some examples.
The first one illustrates the problem of how to phrase an issue
appealingly, with minimum mention of the facts.
The case turned on the income tax liability of a very wealthy father in the
surtax brackets. Papa owned lots of gilt-edged bonds and stuff; before the
coupons matured, he clipped them and gave them to his son as a gift. When
the coupons matured, sonny boy cashed them, and returned the proceeds as
income on his return. This young lad, as it happened, was a substantial
distance from the breadline, but he still wasn't up in Papa's tax range. So the
revenuers undertook to tax the old man for the income from the coupons.
How phrase the question? The Commissioner of Internal Revenue could
have stated it as "Whether a man is taxable on income that his son
received"—but that would hardly have induced any court to say "Yes." So
he stated the question as follows (first example is from the petition, second
from the brief on the merits):
1
Whether the owner of coupon bonds should include in his gross income
the amount of coupons which he detached and gave to his son several
months prior to maturity.
2
The taxpayer owned coupon bonds. Several months prior to maturity of
the interest coupons he detached them and gave them to his son, retaining
the bonds themselves. Is he relieved of income tax with respect to such
interest coupons?
67 E.g., First Circuit, Rule 24 (3) (b); Third Circuit, Rule 24 (2) (b); cf.
Sixth Circuit, Rule 16 (2) (a) .
Both are well-formulated questions. The second is probably a shade the
better because it stresses that the taxpayer retained the bonds and then asks
on top of that whether he is relieved from tax. (The Supreme Court, by six
to three, held that he was not.) 68 Note also the change in the form of the
question presented, from the one-sentence "whether" form to the fact-
statement-plus-question form, all in the direction of adding appeal. The
significant point is less the result in the case than the way that case
illustrates to what extent phrasing the question may be a problem in applied
semantics.
The next two examples illustrate the permissible use of the loading-with-
facts technique:
The first of these concerned an individual who was drafted in 1918 and
ordered to report on November 11, 1918. On that day, of course, all draft
calls were cancelled. So, after lunching with his draft board, this lad went
home, and, in due course, received a "Discharge from Draft." For some
years thereafter he enjoyed the tax exemption accorded by the state
legislature to all honorably discharged soldiers of the War with Germany.
Subsequently the local tax officials tightened up, decided he was not an
honorably discharged soldier, and refused to recognize his exemption. After
suit, the Supreme Court of the State decided that he was not within the
statute.69 Nothing daunted, he communicated with the Secretary of War;
declared that in 1918 he had been ready, willing, able, and fully qualified,
and that his service (such as it was) was honorable; and demanded an
Honorable Discharge from the Army. Being refused, he brought suit—and
the Court of Appeals held that he was entitled to such a discharge. On its
face the thing had all the earmarks of comic opera, if not indeed of an
exaggerated farce. Actually, however, the decision was a very serious
matter for the Army: there were over 45,000 others in like case and issuing
Honorable Discharges to all of these would have involved a very
considerable administrative chore, and would in addition have placed a
substantial financial burden on the United States (and on the States) in view
of the mass of veterans' benefit legislation on the books.
us Helvering v. Horst, 311 U. S. 112.
69 Lamb v. Kroeger, 233 Iowa 730, 8 N.W. 2d 405.
The Secretary of War, therefore, petitioned for review. Here is how he
framed the question presented:
Whether a court may, by mandamus, order the Secretary of War to issue
an "Honorable Discharge from the Army" to an individual who received a
"Discharge from Draft" in 1918, over 25 years prior to the institution of
suit, where such individual simply reported for induction on November 11,
1918, returned to his home on that day because of the cancellation of all
draft calls by order of the President, never entrained for travel to a military
camp, never wore the uniform, and never was accepted for military service
by the Army.
The entire case was thus set forth in the question, whose very phrasing
underscores the untenability of the "veteran's" position. In the actual case,
certiorari was granted, and the decision below unanimously reversed—a
mere thirteen days after oral argument.70
The next example—a similar unfounded claim similarly dealt with—was
the case of the Week-End Sailor—the member of the Temporary Reserve of
the Coast Guard who patrolled the waterfront in his spare time and then
insisted that he was entitled to veterans' preference in subsequent federal
employment. Here again, the question states the case, and here again
certiorari was granted and the decision below, which had held such an
individual to be a veteran, was promptly reversed.71 The question was
stated as follows:
Whether members of the Volunteer Port Security Force, a branch of the
Temporary Coast Guard Reserve, who were assigned duty periods (here, of
less than six hours a week) in order to interfere as little as possible with
their hours of regular civilian employment during their enrollment, who
could be disenrolled at their own request upon representation that their duty
assignments conflicted with such civilian employment, who were not
subject while on duty to transfer away from their homes without their
consent, and who remained at all times subject to the draft provisions of the
Selective Training and Service Act, 1940, are entitled to preference in
federal employment as "ex-servicemen * * * who have served on active
duty in any branch of the armed forces of the United States, during any
war," within the meaning of the Veterans' Preference Act of 1944.72
70 Patterson v. Lamb, 329 U. S. 539.
71 Mitchell v. Cohen, 333 U. S. 411.
72Since then, it has been held that the recipient of a Discharge from
Draft is not entitled to preference under the 1944 Act as an original
proposition, McDougall v. United States Civil Service Com'n, 202 F. 2d
361 (D. C. Cir.), but is so entitled if he had earlier been accorded
preference rights under other legislation. Ellsworth v. Maker, 257 F. 2d
221 (D. C. Cir.).
It should be remembered that these techniques are equally applicable to
every kind of case, and are not in any sense limited to the somewhat
esoteric public law cases that fall to the lot of Government counsel.
Here is an example involving a real estate title that could well arise in
any country lawyer's office at the courthouse square. The question as
phrased was:
Whether a lost grant of a fee simple title may be presumed when there
has been only spasmodic possession at long intervals, where the original
grant and the first mesne conveyance in a complete chain of title disclose
the defect in the claimed title and show that a five-year lease was granted
by the sovereign, and where no record of a grant from the sovereign appears
although the law required records of such grants to be kept.
 There's your chain of title—and your case—in a nutshell. And that is an
example of almost universal utility, since a landtitle dispute could and does
arise anywhere.73

Section 32. Examples of helpful and unhelpful formulations of

the questions presented.
—It goes without saying that not all situations are adapted to the loading-
with-facts technique of formulating the question presented. But the question
presented in any case can be clearly and appealingly stated—-or,
contrariwise, unclearly and unappealingly. It will probably be helpful to set
out as examples the questions presented in each of four cases. The first
statement in each instance is the petitioner's formulation of the question; the
second is the respondent's. As it happens, review was denied in each
instance, and each of the cases is a dozen or so years old. But nothing turns
on either factor for present purposes. The significant point for the student of
the process is to inquire which of the rival statements is more effective, and
why; and whether in his judgment the parties could have stated the problem
for their purposes more effectively than they did. (For convenience in
reference, the citations to the opinions below are included in the footnotes.)
See also Carmel v. U. S. Civil Service Comm., 255 F. 2d 190 (D. C.
Cir.) (two weeks' summer training with the District of Columbia National
Guard in time of peace does not bring employee within the Veterans'
Preference Act of 1944).
73 This particular one arose in the middle of the Pacific Ocean, under
the law of Hawaii, and involved the ownership of Palmyra Island. The
Ninth Circuit decided it twice, once for one side and then for the other,
and the Supreme Court split 5*4. United States v. Fullard-Leo, 331 U. S.
256.
(A)
Petitioner: "Did the Circuit Court of Appeals for the Sixth Judicial
Circuit err in overruling petitioner's contention that until there had been an
adjudication by the proper military tribunal, that the soldier involved was
guilty of violating the Articles of War relating to desertion, the District
Court was without jurisdiction to try the issue presented by the indictment?"
 Respondent: "Whether petitioner could be prosecuted under Section 42
of the Criminal Code74 for aiding a deserter from the Army before the
soldier had been convicted of desertion by a court-martial." 75
In the foregoing case, the petitioner's statement is defective principally
because it is unclear; it refers to "the issue presented by the indictment"
without any clue to what that issue is. Consequently it fails to do what the
correct formulation of "question presented" must always do, viz., tell the
court what the case is about. Respondent's statement does just that, though
it presents the matter plainly, without any effort at forensic sex appeal.
(B)
Petitioner: "1. Is the Petitioner a native, citizen, denizen or subject of a
'hostile nation or government' liable as such 'to be apprehended, restrained,
secured and removed' as an alien enemy?
"2. Is the Petitioner a citizen of the Third German Reich or the German
Nation or Government?"
Respondent: "Whether an alien, born in Bohemia, then a part of the
Austro-Hungarian Empire, in 1905, who later became a Czechoslovakian
citizen when the place of his birth was included in that country after World
War I, and who, after the Munich Pact of 1938, while in the United States,
petitioned to be and was recognized as a German citizen, is now a citizen or
subject of an enemy country within the meaning of the Alien Enemy Act of
1798,76 despite the re-occupation of the territory of his birth and former
residence by Czechoslovakia." 77
"Now 18 U.S.C. § 1381.
75Beauchamp v. United States, 154 F. 2d 413 (C.A. 6), certiorari
denied, 329 U. S. 723.
76 Now 50 U.S.C. §§21-24.
77United States ex rel. Reichel v. Carusi, 157 F. 2d 732 (C.A. 3),
certiorari denied, 330 U. S. 842.
Petitioner's questions are too generalized to be informative. Respondent,
on the other hand, has set forth the facts in his question, through use of the
"loading" technique, and has framed it in such a way that there is left but
little doubt of the answer.
(C)
Petitioner: "Whether petitioner, a former reserve officer of the Army
(and thousands of other reserve officers, whose rights are vitally affected by
this, the first case involving their right to retirement pay) may sue in the
District Court under the principles enunciated by this Court in Dismuke v.
United States, 297 U. S. 167, and similar cases, to recover the retirement
pay provided by Congress in Section 5 of the Act of April 3, 1939, as
amended, when he is deprived of such pay by the arbitrary, discriminatory
and capricious acts of those charged with administering that statute, such
conduct being aimed at preventing petitioner in particular and reserve
officers in general from obtaining the benefits promised them by Congress."
Respondent: "Whether a reserve officer can sue in a district court to
establish his right to retirement pay on account of alleged disability incident
to his military service, where he has not pursued the administrative
remedies made available by statute and executive order for the assertion and
review of such claims, and in the face of the Tucker Act's specific denial of
jurisdiction over 'claims for pensions.'"78
Here petitioner has resorted to the "loading" technique, perhaps to an
unwarranted degree; respondent has also loaded his question but without
resort to epithetic adjectives. The first makes a good jury speech, the second
is a compact plea to the jurisdiction.
(D)
Petitioner A: "The question presented is whether or not a retired United
States District Judge is entitled to increased compensation at the rate of
$15,000 per year provided for District Judges by the Act of July 31, 1946
(Public Law 567, 79th Congress), in lieu of the salary of $10,000 per year
currently being paid."
Petitioner B: "1. Whether the new salary law applies to retired judges of
whom petitioner is one; whether it is open to construction and legislative
history to impose upon it an implied exception of 'retired' judges and
petitioner from it and the increase of salaries granted by it to all district
judges.
 78Randolph v. United States. 158 F. 2d 787 (C.A. 5), certiorari denied,
330 U. S. 839. The provision withholding from district courts any
jurisdiction over claims for pensions is now 28 U.S.C. § 1346 (d) (1).
"2. Whether the so-called retirement law is 'a special reference' or
'specific aspect' or consideration of salaries of 'retired' judges and 'fixing'
the same; whether exercise of the privileges or options of said law is
acceptance of an offer on condition that 'he should continue to draw the
salary he was receiving when he retired' and restricting him thereto despite
the subsequent new salary law and its increase of salary; whether it operates
as an implied exception imposed on the new salary law to exclude 'retired'
judges and petitioner from the grant thereof; and whether the 'retirement'
law is of any legal effect save to conditionally authorize appointment of
additional judges without permanent increase in the number thereof, and in
all else futile, superfluous verbiage affecting the status and salary right of
petitioner not at all."
Respondent: "Whether petitioners, who had retired as United States
District Judges prior to July 31, 1946, are entitled to be paid at the rate of
$15,000 per year, as provided by the Act of July 31, 1946, for 'each of the
judges of the several district courts' when the judges' retirement act
provides for payment to a retired judge of 'the salary of which he is * * * in
receipt' at the time of retirement, and when the salary received at that time
was $10,000 a year." 79
Petitioner A has stated the question clearly and without trimmings;
Petitioner B's statement is—well, not very helpful; but respondent, by
quoting the two statutes in his question, has made it pretty plain that the
judges retired prior to 1946 were just out of luck—which is what was
held.80
Additional examples are legion. But the principle is always the same:
The most appealing statement of the question is always the one that most
effectively impels the reader to want to answer it as the writer of the
question wanted him to.

Section 33. Unappealing formulation of the questions presented

in order to defeat review.
 —When you represent the petitioner, you must dress up your questions
appealingly in order to induce the higher court to take your case. But, when
you appear for the respondent, you are perfectly satisfied with the status
quo, and consequently your duty to your client requires that you minimize
the questions presented by your adversary, in order to make them appear
unimportant, or uninteresting except to the parties involved, or as turning on
a mere question of fact. Here are some examples of effective depressants,
taken from successful Briefs in Opposition.
79Bourquin v. United States, 108 C. Cls. 700, 72 F. Supp. 76,
certiorari denied, 332 U. S. 762.
80 In the 1948 revision of Title 28, Congress changed the law, so that
the retired judge now gets the benefit of salary increases occurring after
retirement. 28 U.S.C. § 371 (b).
(a) Whether the evidence is sufficient to support the verdict.
(b) Whether there is substantial evidence in the record to support the
finding that * * *.
(c) Whether the concurrent findings of the two lower courts that * * * are
correct.
(d) Whether petitioner may now rely on Section of the Act of —, which it
failed to call to the attention of either of the courts below.
(e) Whether, in a prosecution for making sales at over-ceiling prices,
where the sole question at issue was whether petitioners demanded and
received more than the ceiling price, the judge's omission to charge on
wilfulness constituted prejudicial error requiring reversal of the convictions,
where petitioners' counsel specifically acquiesced in the charge.
One caution may be in order when, on behalf of the winning side below,
you employ the "always belittlin' " technique. There is always a tendency to
add, by way of conclusion, that the question presented for review is not an
important one. Very often, however, the question is important, but review is
not, since the case was rightly decided. Therefore, unless you are prepared
to concede that the question would not have been important even if you had
lost below, don't yield to the tendency. For example, if a court decides that a
valid contract requires consideration, the decision is right but the question is
clearly of importance, as will be clear by considering the situation if the
ruling had gone the other way. Therefore, in the usual situation, don't urge
that the question is unimportant; say rather that the decision does not
require further review.
Be careful, also, how far you go in asserting that a case is "sui generis";
you may be seeking review of the same kind of question later on, and, if
your opponent is alert, he is in a position in a close case to persuade the
court to make you eat your words.81
81 In the first Palmyra Island case (United States v. Fullard-Leo, 133 F.
2d 743 (C.A.9), certiorari denied, 319 U. S. 748), the Government argued
(Br. Op. 8; No. 883, Oct. T. 1942) that "This case is, in petitioners' words
(Pet. 5), sui generis. Thus it presents no conflict of decisions and
moreover is correct." But the second decision, by the Ninth Circuit
sitting en banc, went the other way (156 F. 2d 756), and this time the
Government had to seek review. No opposition was filed, and certiorari
was granted. (329 U. S. 697.) I have often wondered whether the
Supreme Court would have agreed to review the case on the second
occasion if the claimants had opposed and quoted the former
characterization.
Section 34. Sound analysis of the legal problem in argument on
the law.
—We come now to the body o£ the brief, the Argument proper. If and to
the extent that a question of law is to be argued, the essential for an
effective brief is that the legal problem involved be carefully and soundly
analyzed.
First, the legal problem of the case must be broken down into its
component parts, to the end that the underbrush, so to speak, may be
cleared away, and the vital issues exposed.
Next, the brief-writer must determine which propositions constitute the
principal issues, and which only the subsidiary ones.
Finally, when there are alternative propositions, any one of which is
sufficient to prevail, the brief-writer must decide in what order he should
present his points.
 First. Two recent examples will serve to explain and to illustrate what I
mean by the kind of analysis that clears away the underbrush.
(a) In the Benanti case,82 State officers, acting in full accordance with
State law, tapped the telephone of one suspected of violating the State
narcotics laws. In consequence of the information thus obtained, the
defendant's car was stopped; the officers, however, found no narcotics but
instead discovered alcohol in cans that lacked the stamps required by
Federal law. The appropriate Federal officials were notified, a Federal
prosecution followed, but it was not until the cross-examination of one of
the State officers at the trial that the prosecutor learned that there had been a
wiretap. Defendant's counsel then made a motion to suppress, which was
denied, and defendant was convicted. He urged the denial of his motion as a
ground of appeal, but to no avail; the Second Circuit said:
Probably, however, the decisive factor in the grant of certiorari was the
public importance of determining the ownership of this strategically-
located island.
In a somewhat similar situation, certiorari was successfully opposed in
a railroad land grant case on the grounds that "The present case is sui
generis, and the issues which it involves are consequently not of public
importance," and that "This is the last railroad land grant case now in
litigation, or which, so far as respondents are aware, can possibly come
into litigation." Chapman v. Santa Fe Pac. R. Co., 198 F. 2d 498 (D. C.
Cir.), certiorari denied, 343 U. S. 964. Thereafter, the State in which the
lands were located taxed the successful claimant for their value in respect
of periods when the United States was still in possession and was
actively resisting the claim. Certiorari was sought; the State authorities
said nothing about "sui generis"; but review was denied, no doubt for
that reason. Aztec Land & Cattle Co. v. Navajo Realty Co., 79 Ariz. 55,
65, 283 P. 2d 227, 234, certiorari denied, 350 U. S. 861.
82 B.enanti v. United States, 355 U. S. 96.
We can find no tenable distinction in principle between the rule of policy
governing the admissibility in federal courts of evidence illegally obtained
by state officers through an unlawful search and seizure, without
participation or collusion by federal officials, and the rule of policy which
should govern the admissibility of evidence obtained by state officials under
similar circumstances in violation of the federal statute against wiretapping.
On the contrary, as Judge Learned Hand, speaking for this Court, observed
in United States v. Goldstein, 2 Cir., 120 F. 2d 485, at page 490, "it would
be a curious result, if a violation of the section were more sweepingly
condemned than a violation of the Constitution." The Supreme Court in
affirming, Goldstein v. United States, supra, pointed out the limited scope
of the rule requiring the exclusion of unconstitutionally obtained evidence,
and said, "We think no broader sanction should be imposed upon the
Government in respect of violations of the Communications Act." 316 U. S.
at page 121, 62 S.Ct. at page 1004. Apart from this authority, surely it
cannot be that the violation of a federal statute calls forth implied sanctions
more pervasive than those formulated by the Supreme Court to compel
obedience to a constitutional mandate.83
The foregoing had a most plausible ring, but was it sound? Was the
analogy a correct one? In a reply brief filed in support of his petition for
certiorari, petitioner argued that—
the question is not whether, as an original proposition, a violation of a
statute is to be more sweepingly condemned than a violation of the
Constitution (L. Hand, J., in United States v. Goldstein, 120 F. 2d 485, 490
(C.A.2), affirmed, 316 U. S. 114), it is rather whether the statute has a more
comprehensive reach by its clear terms than constitutional provisions of
limited (Fourth Amendment) and uncertain (Fourteenth Amendment)
application.
After certiorari was granted, petitioner made a one-point argument, with
several sub-headings; only those bearing on the foregoing analysis of the
question are here set out:
83United States v. Benanti, 244 F. 2d 389, 393 (C.A.2). It should be
noted that all stages of the Benanti case preceded the demise of the
"silver platter" doctrine, as to which see below, pp. 89-90.
Evidence obtained in violation of Section 605 of the Federal
Communications Act, by any person whosoever, is inadmissible in a federal
prosecution in a federal court.
A. A state officer participating in an illegal search and seizure does not
violate federal law, whereas a state officer engaged in wiretapping does.
 B. Wiretapping evidence obtained by state officers and turned over to
federal officers for use in a federal prosecution is inadmissible in a federal
court.
C. The terms of Section 605 of the Federal Communications Act render
inapplicable the "silver platter" doctrine.
The Supreme Court adopted the foregoing argument, saying:
Furthermore, confronted as we are by this clear statute, and resting our
decision on its provisions, it is neither necessary nor appropriate to discuss
by analogy distinctions suggested to be applicable to the Fourth
Amendment. Section 605 contains an express, absolute prohibition against
the divulgence of intercepted communications. Nardone v. United States,
302 U. S. 379, 382. * * * 84
Otherwise stated, the underbrush to be cleared away was the assumption
that a constitutional provision necessarily has a broader reach than a
statutory one. Once this deceptively facile assumption was placed against
the actual terms of each provision, it promptly evaporated. The moral is that
the brief-writer should never let himself be beguiled by any phrase, no
matter how neatly it may be turned.85
(b) Another example of essential preliminary analysis may be found in
the second hearing of the first cases dealing with the validity of trials by
court-martial of civilian dependents, Reid v. Covert and Kinsella v.
Krueger.se
84 355 U. S. at 102.
85Mr. Justice Holmes long ago observed that "It is one of the
misfortunes of the law that ideas become encysted in phrases and
thereafter for a long time cease to provoke further analysis." Hyde v.
United States, 225 U. S. 347, 384, 391.
See also the illuminating comments of the late Judge Frank in United
Shipyards v. Hoey, 131 F. 2d 525, 526-527 (C.A.2) : "* * * some of the
greatest errors in thinking have arisen from the mechanical, unreflective,
application of old formulations—forgetful of a tacit 'as if—to new
situations which are sufficiently discrepant from the old so that the
emphasis on the likenesses is misleading and the neglect of the
 differences leads to unfortunate or foolish consequences. In
governmental or business administration, such neglect, when it occurs,
provokes justifiable irritation at 'bureaucracy'; in judicial administration
it deserves criticism as unenlightened precedent-mongering." 86 354 U.
S. 1.
In its original opinion, the Supreme Court had relied heavily on the view
that such trials involved a cession of jurisdiction by the foreign nations
where the trials had taken place,87 and had in consequence concluded that
there was no need to examine the power of Congress, under Article I,
Section 8, Clause 14, of the Constitution "To make Rules for the
Government and Regulation of the land and naval Forces." 88 As one of the
non-concurring justices remarked, "The plain inference from this is that the
Court is not prepared to support the constitutional basis upon which the
Covert and Smith courts-martial were instituted and the convictions were
secured." 89 Or, more realistically if less politely stated, there were not
enough votes to uphold the conviction under Clause 14.
A petition for rehearing was duly filed; it is set forth in Chapter XIII,
infra, pp. 432-440. But the basic problem of how to focus the Court's
attention on the Constitution, on Clause 14, and away from the allurement
of international affairs, was not thoroughly thought through until after the
rehearing had been granted 90 and a new brief was in course of preparation.
The principal point to be made was that "Nothing in the Constitution of the
United States authorizes the trial of civilians by court-martial in time of
peace and not in occupied territory." But first the jurisdictional underbrush
needed to be cleared away. Accordingly, the first point on behalf of the
dependent wives was set forth as follows:

I. The consent of England and Japan to the exercise of American military

jurisdiction within their territories in respect of offenses committed therein
did not and could not invest American courts-martial with jurisdiction to try
particular persons.
87 "Japan, at the time of the offense, had ceded to the United States
'exclusive jurisdiction over all offenses which may be committed in
Japan by members of the United States armed forces, the civilian
component, and their dependents. . . .'" Kinsella v. Krueger, 351 U. S.
 470, 473-474. "Foreign nations have relinquished jurisdiction to
American military authorities only pursuant to carefully drawn
agreements which presuppose prompt trial by existent authority." Id., at
479.
88 351 U.S. at 476.
89 351 U.S. at 481.
90 352 U. S.901.
A. The territorial sovereign does not confer jurisdiction on the personal
sovereign, but simply consents to the personal sovereign's exercise of
jurisdiction; and the scope of the latter's jurisdiction depends, not on the
territorial sovereign's consent, but on the personal sovereign's law.
B. The American military jurisdiction asserted in the present case did not
purport to be conditional, but was rested on an assumed American power.
C. If, as a matter of American law, including American constitutional
law, American courts-martial have no jurisdiction to try particular civilians,
such courts-martial cannot by treaty or international agreement be given a
wider jurisdiction, for the reason that no treaty can prevail over specific
constitutional guarantees, in this instance the right to trial by jury.
The argument under IA was then set out with a series of examples, each
derived from an actual case, much as a teacher would expound propositions
in a classroom. In the interest of brevity, only the summary of that argument
is copied from the brief.
I. A. The territorial sovereign does not confer jurisdiction on the personal
sovereign, but simply consents to the personal sovereign's exercise of its
own jurisdiction; and the scope of the latter depends, not on the territorial
sovereign's consent, but on the personal sovereign's law. Thus, if a ship of
Country A is in the territorial waters of Country B, and a homicide is
committed on board by a member of the crew, primary jurisdiction belongs
to the territorial sovereign, so that the territorial sovereign's claim to trying
the offender prevails. Wildenhus's Case, 120 U. S. 1. But if the territorial
sovereign is content to let the personal sovereign proceed with the trial, the
latter can do so, thus establishing that the territorial sovereign's jurisdiction
is not exclusive but only primary. United States v. Flores, 289 U. S. 137. If,
however, the personal sovereign's law is insufficient to reach the offense,
then the territorial sovereign's consent is ineffective to prevent the
offender's going free; that course necessarily follows if the courts of the
personal sovereign lack jurisdiction of the offense (United States v.
Wiltberger, 5 Wheat. 76) or if the particular court of the personal sovereign
lacks jurisdiction of the person (Toth v. Quarles, 350 U. S. 11). Thus the
assumption underlying last June's opinions, that there was a relinquishment
of jurisdiction by England and Japan which automatically empowered the
United States to try these civilian women by courtmartial, is shown to be
wholly untenable.
A majority of the Supreme Court was persuaded by this analysis, and
although the justices differed as to the scope of their ruling, the holding of
the Court was that dependents could not constitutionally be tried by courts-
martial for capital offenses.91
Second. In what order should the brief-writer's points be presented? This
is not a matter as to which one can profitably be dogmatic, but a good
working principle is to put one's best foot forward.
(a) Where there are no alternatives, i.e., where you must prevail on every
point in order to win, the only solution is to set forth your points in logical,
step-by-step progression. This is subject to the qualification that, if there is
no particular logical sequence, the point that goes to the very heart of the
matter, the point that strikes the jugular, should always be argued first.
Let me take some examples:
(i) In the Harris search-and-seizure case,92 the officers arrested Harris
under a warrant, then searched his apartment for the instrumentalities of the
crime for which he was arrested, and in the course of that search found the
contraband for the possession of which he was tried and convicted. In order
to sustain the conviction, it was first necessary to show that the officers had
a right to search, next that this right extended to all of Harris's apartment,
and finally that they could retain any contraband discovered in the course of
that search. The point first mentioned was basic and hence it was argued
first; the others followed logically thereafter. Here was the sequence of
points:
 I. It has always been held that one of the incidents of a lawful arrest is the
right to search the premises under the control of the person arrested for the
instrumentalities of the crime of which he is accused, and that such a search
is a reasonable one within the Fourth Amendment.93
II. The search was not a general exploratory search for evidence of crime.
III. The search was not improper because it extended beyond the precise
portion of the premises where petitioner was arrested.
91Reid v. Covert, 354 U. S. 1, withdrawing Kinsella v. Krueger, 351
U. S. 470, and Reid v. Covert, 351 U. S. 487.
Three years later, the Court in a series of cases held that dependents
could not be tried by court-martial for non-capital offenses {Kinsella v.
Singleton, 361 U. S. 234), and that civilian employees could not be so
tried either, whether their offenses were capital (Grisham v. Hagan, 361
U. S. 278) or noncapital (McElroy v. Guagliardo, 361 U. S. 281).
92 Harris v. United States, 331 U. S. 145.
93 For the subheadings under this point, see p. 69, supra.
IV. The seizure of the Selective Service documents and their introduction
in evidence were proper.
(ii) In the Hackfeld Alien Property case,94 the facts, briefly, were that
Hackfeld's Hawaiian property had been seized during the first World War;
that it was returned to him, pursuant to an Executive Allowance signed by
the President, on a determination that he was an American citizen; and that
thereafter he sought a further recovery, after which the Government brought
a cross-action for the return of alleged overpayments, asserting that, as a
matter of law, Hackfeld had never been an American citizen, and that he
had, through his fraud, induced the determination that he was one. The trial
judge directed a verdict in favor of the Government on the sole basis that
Hackfeld had always been a German and that the additional payments had
in consequence been made without authority of law. Hackfeld's estate
appealed.
On the appeal, the Government had to show first, that the court had
properly gone behind the Presidential Allowance; next, that a certain tax
proceeding was not res judicata as to Hackfeld's citizenship; third, that the
trial judge was right as a matter of law in ruling as he did; and, finally, that
the facts of record as to Hackfeld's fraud were sufficient for alternative
support of the judgment. So the brief filed in the Second Circuit presented
the main points in that order:
I. The Executive Allowance in No Way Constituted a Bar to this Action.
II. The Federal Estate Tax Proceeding is No Bar to this Action.
III. Hackfeld Never Became An American Citizen.
IV. The District Court Should Have Directed a Verdict in Appellees'
Favor on the Ground of Fraud.
It is proper to note, however, that these last headings are assertive and not
argumentative, and therefore not to be commended as headings.
(iii) In the Douglas Chandler treason case,95 the defendant raised
numerous objections to his conviction—that he had been tried in the wrong
district, that Congress had not made specific provision for the trial of
offenses committed abroad, that he had been improperly returned to the
United States, that treason could not be committed by adherence to the
enemy by an American residing in enemy territory, that the overt acts were
insufficient and were insufficiently proved, and that the court made errors in
the admission of testimony and in its instructions to the jury.
94United States v. Rodiek, 117 F. 2d 588 (C.A. 2), rehearing denied,
120 F. 2d 760, affirmed by an equally divided court, 315 U. S. 783. See
also Rodiek v. United States, 100 C. Cls. 267.
95
Chandler v. United States, 171 F. 2d 921 (C.A.I), certiorari denied,
336 U. S.918.
In order to sustain the conviction, it was just as important for the
Government to establish that Chandler was tried in the proper district as it
was to prove that his acts amounted to treason. But the heart of the case was
the proposition that broadcasting propaganda on behalf of an enemy was
treason, and so that point was argued first. The details as to arrangement of
the Government's points are set forth below in Section 47 under the
heading, "Never Let the Other Side Write Your Brief." That is to say, select
your own battleground; do not permit opposing counsel to choose it for you.
This is an admonition almost universally applicable.
 (iv) Sometimes one arrangement of points will be better in order to get
into court but less desirable when the merits are to be argued.
Thus, in Elkins v. United States,TM the recent case that overturned the
"silver platter" doctrine,97 certiorari was sought after the Supreme Court
had already agreed to review the related case of Rios v. United States?* In
opposing certiorari in Rios, the Government had said that "the State of
California in this case has not attempted to restrain its officers from turning
over evidence to the federal government or from testifying in a federal
court." Now, in Elkins, such an order had actually been obtained from an
Oregon Circuit Court, only to be thereafter disregarded by the United States
District Court. Accordingly, in order to demonstrate that Elkins was an a
fortiori case, the questions presented were arranged in the following order:
1. Whether, after a state court has suppressed evidence that it held to be
illegally seized as a matter of state law and has enjoined state and county
officials from testifying concerning such evidence, a federal conviction may
thereafter be had and affirmed, where the federal court did not undertake
any independent examination of the original state seizure but assumed that
it was illegal as a matter of state law, and proceeded on the basis of (a) the
testimony of the state officers, who were directed by the federal court to
testify notwithstanding the state court injunction, and of (b) the suppressed
evidence, which was subsequently taken from the constructive custody of
the state court under a federal search warrant, on the footing that Rea v.
United States, 350 U. S. 214, involves an application of the Supremacy
Clause rather than a doctrine of reciprocity and of comity between state and
federal courts.
96 364 U. S. 206.
97
Weeks v. United States, 232 U. S. 383, 398; Lustig v. United States,
338 U. S. 74, 78-79.
98Rios v. United States, 256 F. 2d 173 (C.A. 9), certiorari granted, 359
U. S. 965.
2. Whether the evidence used against petitioners in the federal
prosecution was obtained in violation of their rights under the Constitution
of the United States.
 3. Whether, if the evidence was unlawfully obtained, it was admissible in
the federal prosecution of petitioners because obtained by state officers
without federal participation.
Later, after certiorari was granted in Elkins, it appeared to counsel that
the first question presented contained difficulties the Supreme Court might
want to avoid, and that, if the "silver platter" doctrine were to be
abandoned, the converse-of-i?ea issue need never be reached. Accordingly,
in the Elkins brief on the merits, the points from the petition were
rearranged in this order: 2, 3, 1.
After argument, the "silver platter" rule was discarded, thus making it
unnecessary for the Court to consider the scope of the Rea doctrine.
Curiously enough, the Justices who dissented because they preferred to
retain the "silver platter" rule were prepared to affirm the Elkins conviction
without reference to Rea?9
(b) When you have alternative grounds, place the most appealing one
first—and by "most appealing" in this connection is meant the proposition
that evokes the least judicial sales resistance.
(i) In the Hatahley Indian depredation case,100 already mentioned in
another connection [supra, Section 26), the Federal agents had purported to
act under the provisions of a State statute dealing with abandoned horses,
which had provisions for notice different from those of the Act of Congress
covering grazing on the public domain. The trial judge found and held that
the provisions of the State statute had not been complied with, and the
record supported an argument that, in any event, the application of those
provisions to the petitioners would have involved denying them Due
Process of Law. The publication and posting of notices in English is, after
all, hardly a constitutionally effective way of warning illiterate and non-
English speaking Indians.101 But the Supreme Court is normally chary of
interpreting a State statute as an original proposition,102 and of course
constitutional questions are to be avoided if the case can be otherwise
decided.103 So the petitioners stressed the inconsistency between the state
and federal provisions, and presented their points as follows:
99See both dissenting opinions in the case, 364 U. S. at 233 and 251.
This may have been an oversight incident to the pressures of winding up
 the Term; from June 6 through June 27, 1960, the Court handed down
opinions that extended (including dissents and concurrences) to over 800
pages in the official reports.
100 Hatahley v. United States, 351 U. S. 173.
I. The Indians' rights under the Taylor Grazing Act could not be affected
by the Utah abandoned horse statute.
A. The Taylor Grazing Act gave the present petitioners affirmative rights
with respect to the grazing of their horses and burros that were not
contained in the Utah abandoned horse statute.
B. The Taylor Grazing Act and the regulations thereunder provided for
personal notice to trespassers on the federal range, whereas the Utah
abandoned horse statute provided only for notice by publication.
C. The reservation for state police power in the Taylor Grazing Act did
not permit the Utah abandoned horse statute to operate in the very sphere
that Congress was regulating, viz., grazing on the public domain.
D. The Government's agents were not authorized to invoke the Utah
abandoned horse statute.
II. Even if the Utah abandoned horse statute were applicable, its
provisions were not followed, and accordingly, it could not justify the
slaughter of the Indians' horses for which compensation is sought here.
101 Cf. Mullane v. Central Hanover Bank if Trust Co., 339 U. S. 306.
102 por ,-jjg present status of the "abstention doctrine," which had its
origin in Meredith v. Winter Haven, 320 U. S. 228, the reader must be
referred to a quartet of cases decided on June 8, 1959: Louisiana P. if L.
Co. v. Thibodaux City, 360 U. S. 25; Harrison v. N.A.A.C.P., 360 U. S.
167; Allegheny County v. Mashuda Co., 360 U. S. 185; and Martin v.
Creasy, 360 U. S. 219. A manful effort to reconcile these decisions will
be found in Kurland, Toward a Co-Operative Judicial Federalism: The
Federal Court Abstention Doctrine, 24 F.R.D.481.
See also Clay v. Sun Insurance Office, 363 U. S. 207.
103 E.g., Rescue Army v. Municipal Court, 331 U. S. 549; Parker v.
City of Los Angeles, 338 U. S. 327; District of Columbia v. Little, 339 U.
 S. 1; Peters v. Hobby, 349 U. S. 331.
III. Even if the provisions of the Utah abandoned horse statute should be
held to have been complied with to the letter, its application to these
petitioners involved a denial of constitutional protections.
The Supreme Court held that there was an inconsistency between the
Federal regulation and the State statute, that there was no compliance with
the Federal regulation for notice, and that the Utah abandoned horse statute
was accordingly not properly invoked.104 This conclusion made it
unnecessary for the Court to consider any questions of State law—and thus
justified the order in which the points had been arranged in the brief.
(ii) Another example: In cases involving judicial review of administrative
action, when you are appearing for the agency, show that the agency was
right before you start to argue that, right or wrong, its determination is not
subject to judicial review. The other order may be more logical, but it
involves substantially more judicial reluctance; courts don't like to be told
that their jurisdiction to review is limited.
Thus, in a case which involved the scope of a railroad's release of lands
under the Transportation Act of 1940,105 the two main headings in support
of the administrative action giving that release full effect were as follows:
I. Claims to lands granted by the Acts of 1874 and 1904 in lieu of lands
granted by the 1866 Act and thereafter relinquished were extinguished by
the release here executed pursuant to the Transportation Act of 1940.
II. Apart from the merits, the Secretary's construction of the
interrelationship between the Acts of 1866, 1874, 1904, and 1940 involved
the exercise of discretion, was reasonable, has not been shown to be clearly
wrong, and thus is impregnable to mandamus.
As it happened, the court went directly to the merits and upheld the
Secretary,106 but the same technique employed in similar cases, now that
the Administrative Procedure Act has substantially
104 351 U. S. at 179-180.
105 Krug v. Santa Fe P. R. Co., 329 U. S. 591.
 106 "yye ag]-ee with the District Court. We think, as it held, that the
Secretary of the Interior's construction of the 1940 Act was clearly right.
Therefore, we do not discuss the Government's contention that, since the
Secretary's construction was a reasonable one, it was an allowable
exercise of his discretion which should not be set aside by injunction or
relief in the nature of mandamus. See Santa Fe P. R. R. v. Work, 267 U.
S. 511, 517; cf. Santa Fe P. R. R. v. Lane, 244 U. S. 492." Krug v. Santa
Fe P. R. Co., 329 U. S. 591, 597.
broadened the scope of review in those situations where it is applicable,107
may well lead to decisions sustaining the administrative determination. In
any event, courts are much more inclined to withhold their hand after first
being convinced that the administrative officer was right—which is simply
another illustration of the principle that courts delight to do substantial
justice or, at the very least, that they are perceptibly influenced by "the
equities."
(iii) Similarly, where one alternative involves distinguishing away a
recently decided case while the other has a clear path not thus obstructed,
argue the latter alternative first in order to avoid the reluctance that courts
always feel when they are asked to reshape their recent precedents.
Requesting a court to overrule or modify a case but lately decided, after full
consideration and over strong dissent, always involves a heavy uphill pull.
Thus, in the Knauer denaturalization case,108 the argument in support of
the judgment below, which had cancelled Knauer's citizenship, rested on
two elements: fraud in the oath of allegiance, and fraud in his representation
that he was attached to the principles of the Constitution. The latter problem
had been before the Supreme Court in Schneiderman v. United States,109 a
case that was twice argued, and that had not only narrowed the scope of
denaturalization proceedings, but had substantially (and, in the view of the
dissenting judges, unduly) narrowed the concept of "attached to the
principles of the Constitution." 110 Moreover, in Baumgartner v. United
States,111 the Court had held that the facts there presented did not establish
"beyond a troubling doubt" that Baumgartner had committed fraud in taking
the oath of allegiance.
Each of these decisions placed a heavy burden on the Government, but
the Schneiderman case was the more impressive and difficult obstacle,
partly because it had been a more hotly contested litigation, but essentially
because it involved a fuzzier and more debatable concept, viz., the
principles of the Constitution. In consequence, it was decided in Knauer to
argue fraud in the oath of allegiance first, as follows:
107See Sec. 10, Administrative Procedure Act (5 U.S.C. § 1009);
Universal Camera Corp. v. Labor Board, 340 U. S. 474; O'Leary v.
Brown-PacificMaxon, 340 U. S. 504. Exceptions to the rule of
reviewability are specified in Sec. 2 (a), 5 U.S.C. § 1001 (a). Curiously
 enough, the former "impregnable to mandamus" rule reached its highest
flowering under the fostering care of the most conservative judges. See
Riverside Oil Co. v. Hitchcock, 190 U. S. 316 (Peckham, J.); Wilbur v.
United States, 281 U. S. 206 (Van Devanter, J.).
108 Knauer v. United States, 328 U. S. 654.
109 320 U. S. 118.
110See Wiener, "Freedom for the Thought That We Hate": Is it a
Principle of the Constitution?, 37 A.B.A.J. 177 (1951), which sets forth
the historical materials.
111 322 U. S. 665.
I. The evidence establishes beyond a troubling doubt that in 1937, when
petitioner renounced allegiance to the German Reich and took an oath of
allegiance to the United States, he committed conscious and deliberate
fraud.
II. Fraud in the oath of allegiance is a proper ground for cancellation of a
certificate of naturalization.
III. The evidence likewise establishes beyond a troubling doubt that
petitioner's representation at the time of his naturalization that he was
attached to the principles of the Constitution of the United States was
consciously and deliberately false; and this is an additional ground for
cancelling his certificate of naturalization.
The case was decided in the government's favor on the ground that
Knauer's oath of allegiance had been shown to be fraudulent, and the Court
thus did not reach the question of attachment.112
Other instances of treating precedents that the brief-writer needs to
distinguish, generally because his case would be stronger had they never
been decided, are considered below in Sections 35 and 53, infra, pp. 111-
114, 156-159.
(iv) It may happen on occasion that correct analysis and effective
presentation require the broader and more difficult proposition to be argued
first. A striking illustration of such an instance was the case that involved
the refusal of the Rhode Island courts to enforce treble-damage actions for
overcharges in violation of OPA ceilings, on the ground that these were
actions for penalties based on the statute of a foreign sovereign! 113
Two questions were involved, one being whether such a proceeding was
really an action for a penalty, and the other whether, even if it was, it could
be maintained none the less. The argument for the plaintiff (joined by the
Price Administrator as intervenor) was that, under the Federal rule, the
action was not one for a penalty, but that, even so, the state courts were
bound to enforce it. Which point should be argued first? The quotation is
from the first argument paragraph of the prevailing brief:
112"Since fraud in the oath of allegiance which Knauer took is
sufficient to sustain the judgment below, we do not reach the other
questions which have been argued." Knauer v. United States, 328 U. S. at
674.
113 Testa v. Katt, 330 U. S. 386.
We assume arguendo at the outset that the present action—a consumer's
action for treble damages under Section 205 (e) of the Emergency Price
Control Act as amended—is an action for a penalty even though the actual
recovery here was limited to the amount of the overcharge plus an
attorney's fee. We make that assumption in order to bring more sharply into
focus our contention that, since the courts of Rhode Island are open to
actions for penalties founded upon state law, they cannot consistently with
the Supremacy Clause of the Constitution refuse to take jurisdiction of
similar actions founded on federal law. Thereafter, once the basic question
of discrimination against a federal cause of action is disposed of, we
proceed to show that, since the consumer's action under the Emergency
Price Control Act is a federal right, its nature must be judged by federal
standards, and that, under the decisions of this Court, it is clearly a remedial
action and not one for a penalty, even though multiple damages plus an
attorney's fee may be recovered. That being so, a fortiori the Rhode Island
courts cannot refuse to entertain such actions.
The Court followed this approach, assumed without deciding that the
section in question was a penal statute, and then held that the State courts
were not free under Article VI of the Constitution to refuse enforcement of
the claim.114
 (v) The advocate's problem is underscored by the comparison of example
(iv), above, with examples (i) to (iii) : When is it appropriate to argue the
easier point first and when the harder one? The only honest answer, of
course, is "it all depends"—because there just isn't any ironclad rule that
will fit every case. Normally it is sound technique to start on the line of
least resistance, but occasionally a situation will call for grasping the nettle
firmly, for arguing the really difficult point at the outset. The last example
discussed illustrates such a situation—and it's simply up to the lawyer
handling the case to decide which approach is more likely to succeed. There
is no ready-made rule of thumb to save you from the pain of choosing
which course to pursue—but once you decide, adhere to the approach you
have selected, and don't wobble back and forth as though you still couldn't
make up your mind.
114 "For the purposes of this case, we assume, without deciding, that §
205 (e) is a penal statute in the 'public international,' 'private
international,' or any other sense. So far as the question of whether the
Rhode Island courts properly declined to try this action, it makes no
difference into which of these categories the Rhode Island court chose to
place the statute which Congress has passed. For we cannot accept the
basic premise on which the Rhode Island Supreme Court held that it has
no more obligation to enforce a valid penal law of the United States than
it has to enforce a valid penal law of another state or a foreign country.
Such a broad assumption flies in the face of the fact that the States of the
Union constitute a nation. It disregards the purpose and effect of Article
VI of the Constitution which provides: 'This Constitution, and the Laws
of the United States which shall be made in Pursuance thereof; and all
Treaties made, or which shall be made, under the Authority of the United
States, shall be the supreme Law of the Land; and the Judges in every
State shall be bound thereby, any Thing in the Constitution or Laws of
any State to the Contrary notwithstanding.'" Testa v. Katt, 330 U. S. at
389.

Section 35. Legal arguments that had better be avoided.

— (a) Weak propositions. Perhaps the most important admonition under
this heading is to avoid arguing weak questions or any in which you have
no faith; their inclusion only serves to weaken the rest of your argument,
and may well result in serious prejudice to your case.
Indeed, critics of outstanding competence have emphasized that it is the
ability to discern weak points, and the willingness to discard weak points,
that constitute the mark of a really able lawyer.
For example, Judge Learned Hand, in his tribute to one of America's
greatest patent lawyers, the late Charles Neave, said:
With the courage which only comes of justified self-confidence, he dared
to rest his case upon its strongest point, and so avoided that appearance of
weakness and uncertainty which comes of a clutter of arguments. Few
lawyers are willing to do this; it is the mark of the most distinguished
talent.115
And the late William D. Mitchell, one-time Attorney General of the
United States, and one of the ablest of Solicitors General, wrote:
Some lawyers, of course, do not have enough confidence in their own
judgment or are not competent to select weak points, but the most effective
advocate is one who has the courage to eliminate such arguments.116
115Hand, In Memory of Charles Neave, in The Spirit of Liberty
(Dilliard's2ded. 1951) 127-128.
116 Book Review (1950) 64 Harv. L. Rev. 350, 351.
Indeed, it may safely be laid down as a proposition of general application
that to include a weak point is virtually certain to dilute every strong one.
I can cite two examples to illustrate the foregoing, both drawn from
personal experience.
(i) In the Di Re case,117 a dozen or so years ago, the question, stated most
favorably for the prosecution, was, "Whether, when officers have been
informed that contraband is to be transferred at a certain place, and their
observations reasonably justify the conclusion that a transfer has taken
place in an automobile at such place, they are justified in searching and
arresting a third person present in the automobile about whom they had no
previous information." In the Government's petition for certiorari it was
urged that Di Re's search could be justified without regard to the validity of
his arrest, first, under the principle that a vehicle may be searched by
officers having reasonable cause to believe that it is being used to carry
contraband; 118 and, second, on the ground that, in any event, probable
cause existed for the arrest.119
After the petition was granted, and in the course of writing the brief on
the merits, I was beset with doubts as to the soundness of the first
proposition, because after all it is quite a step from searching the
automobile to searching the people who ride in it. In the end, we reversed
the order of the points in the brief, arguing first, that "the search of
respondent was justified as incident to a lawful arrest," and second, that
"alternatively the search of respondent was justified as incident to the
search of a moving vehicle reasonably believed to be carrying contraband."
At the oral argument I simply stated the alternative point, and did not in any
sense bear down on it. But my real mistake was in leaving it in at all. It was
a weak point, I had no faith in it, and yet it colored the entire case. We lost,
and the Court's opinion took up and demolished our weak ground first. By
the time that was disposed of, the Court was in a fine frame of mind to do
execution on our strong point—and it did just that.
117 United States v. Di Re, 332 U. S. 581.
118See Carroll v. United States, 267 U. S. 132; Husty v. United States,
282 U. S. 694; Scher v. United States, 305 U. S. 251; compare, for
decisions after the Di Re case, Brinegar v. United States, 338 U. S. 160,
and Henry v. United States, 361 U. S. 98.
119Judge Clark had said, dissenting below, "Police officers cannot be
held unreasonable in declining to view as a mere bystander one who
accompanies a criminal to a crime rendezvous." United States v. Di Re,
159 F. 2d 818, 820 (C.A. 2).
The weak point, then, didn't help; it only undermined the good point. I
don't mean that we would necessarily have prevailed on the stronger point,
but at least it would have been considered and disposed of in a more
favorable setting. So I learned, and with the conviction derived of painful
experience I urge, avoid arguing questions in which you have no faith.
(ii) The next example is from a case decided two years ago, Williams v.
Lee.120 There the basic problem was whether the courts of Arizona had
jurisdiction to entertain an action brought by an Indian trader—a white man
—against Navajo Indians living on the Navajo Reservation in respect of a
sale that he had made to them there on credit. If the doctrine of Worcester v.
Georgia121 still had vitality, then this question required a negative answer.
The problem for counsel representing the Indians was whether to go further
and to urge that the Arizona sheriff could not even enter upon the
reservation to serve process; and/or122 whether to fall back on narrower
ground, viz., an Interior Department regulation governing Indian traders
which stated that "A trader may extend credit to Indians, but such credit
will be at the trader's own risk," 123 and arguing that the transaction was
rendered unenforceable by virtue of that regulation.
In the Supreme Court of Arizona, counsel for the Indians set forth not
only the basic proposition, but added both of the other contentions; that
tribunal rejected all three. On the question of service, it held that to accede
to the proposition urged would result in making the reservation a refuge for
malefactors, and it disposed of the regulation by saying that this went to the
merits and not to jurisdiction.124
The first problem on certiorari was how far to urge the Indians'
jurisdictional immunity. It was plain that the State court's fears of a
privileged sanctuary were unfounded, since under a whole line of cases
State process ran on an Indian reservation against non-Indians.125
Moreover, there were expressions in a number of opinions that such process
did not run there in respect of matters outside State cognizance.126 Since the
basic issue in the case was the extent of State jurisdiction, it was deemed
wiser to drop the more difficult question of process, because after all, if the
Indians' jurisdictional position were well founded, such process would be a
nullity.
120 358 U. S.217.
1216 Pet. 515.
122Despite condemnation of the use of "and/or" by eminent authority
(see An And/Or Symposium, 18 A.B.A.J. 574), I still think that it
expresses accurately the thought it is here employed to express, viz., the
alternative between either and both; i.e., between A plus B, and B instead
of A.
 12325 C.F.R.(1958 ed.) §252.17, promulgated pursuant to 25 U.S.C. §
262. In earlier versions of Title 25, C.F.R., this regulation was numbered
§277.17.
124 Williams v. Lee, 83 Ariz. 241, 319 P. 2d 998.
The regulation, however, appeared to furnish a sound basis for reversal of
the judgment below, even though it meant resting the case on a narrower
jurisdictional basis. So the petition for certiorari raised both questions, in
these terms:
1. Whether the courts of Arizona have jurisdiction of an action brought
against members of the Navajo Indian Tribe by a non-Indian in respect of a
transaction arising within the boundaries of the Navajo Indian Reservation
in Arizona.
2. Whether, where a non-Indian trader enters and trades on an Indian
reservation pursant to federal regulations, which declare that he extends
credit to Indians only at his own risk, the courts of Arizona have
jurisdiction to determine the claim of such non-Indian trader against Indians
in respect of a purchase on credit.
After certiorari was granted, and while preparing the brief on the merits,
counsel for the Indians learned that originally the regulation had provided
that "Credit to Indians will be at the trader's own risk, as no assistance will
be given by Government officials in the collection of debts against Indians;"
127 and that the last clause had been stricken at the request of an association

of Indian traders, who had successfully urged that, while the Indian Bureau
was not to act as a collection agency, its officials should at least use moral
suasion to induce Indians to meet their obligations. In the face of that
textual history, counsel for the Indians felt themselves unable to argue that
the single phrase, "at the trader's own risk," made the obligation such a
nullity that it could not be sued upon in a court of competent jurisdiction.
With this explanation, duly set out in the Indians' brief, the second question
presented by the petition was formally abandoned.
125E.g., United States v. McBratney, 104 U. S. 621; Draper v. United
States, 164 U. S. 240; New York ex rel. Ray v. Martin, 326 U. S. 496.
126
E.g., United States v. Kagama, 118 U. S. 375, 383; Langford v.
Monteith, 102 U. S. 145, 147; Utah&N.R. Co. v. Fisher, 116U. S. 28, 31.
 127 General Indian Regulations of June 29, 1927, <\ 22.
At this juncture the Government, which had been invited by the Court to
state its views,128 picked up the regulation, and argued that it meant that
legal or judicial remedies were unavailable to traders seeking to collect
unsecured debts from their Indian customers. This argument made it
possible for the United States to avoid taking any position on the
jurisdictional question—an issue that involved delicate Federal-State
relationships in an area where "Present Federal policy calls for the
termination of Federal supervision of affairs of Indian tribes desiring such
termination, to the extent practicable and as soon as termination is feasible."
129

In their reply brief, counsel for the Indians emphasized that the regulation
point had been abandoned, not because they were urging the Court to make
a broad constitutional pronouncement, but solely and simply because they
felt that the regulation was not susceptible of the meaning that the
Government professed to find therein. At the argument, the Indians'
advocate proved that the regulation did not render a sale on credit
unenforceable; he presented a list, by name and docket number, of literally
hundreds of suits successfully brought by Indian traders against Indians, in
respect of sales on credit, in courts of competent jurisdiction, namely, the
Indian Tribal Courts.130
The opinion of the Supreme Court took the broad jurisdictional ground,
reaffirmed Worcester v. Georgia,131 strongly suggested that the sheriff
should not have entered the reservation 132— and did not even mention the
regulation that the Government had so strenuously put forward!
The result therefore fully vindicated the course taken, pursuant to the
admonition earlier set forth: Avoid arguing questions in which you have no
faith; instead, have the courage—and the good sense—to abandon such
questions.
128 356 U. S. 930.
129Federal Indian Law (1958 ed.) 501. The student may find it
interesting to compare the statement of the basic jurisdictional principle
as it is set forth in Cohen, Handbook of Federal Indian Law (1941) 116,
with the later version in Federal Indian Law (1958 ed.) 502, and then to
 inquire whether the change reflects intervening decisions or merely an
intervening policy.
130 See 25 C.F.R. (1958 ed.), part 11.
131 6 Pet. 515.
132 See 358 U. S. at 220-222.
(b) Hornbook generalizations. Another sound caution is to avoid
emphasizing or relying upon elementary, or hornbook, propositions. Any
time, for instance, that a lawyer goes all out on the presumption of
constitutionality, he all but indicates that he seriously doubts the validity of
the statute on which he is relying. Similarly, any time a brief dealing with a
question of statutory construction cites Holy Trinity Church v. United
States,1TM an astute court at once recognizes that it is being asked to
rewrite a law in the way the legislature should have done but didn't. (This is
not to suggest that the days of judicial tinkering with statutes are over, by
any means; but a decent regard to prevailing techniques of the elegantia
juris as applied to the pretzel-bending of statutory provisions (compare
Section 57, below) plainly precludes resort to anything as bald as the Holy
Trinity Church case—which in consequence had better not be cited.)
(c) Arguments of last resort. There are other indicia of last resort
arguments also, points that should simply not be made, because to make
them amounts to giving the court a signal that your case is hopeless—and
that you know it is hopeless. In this category fall most of the equal
protection clause contentions in constitutional matters,134 and, in criminal
cases, arguments that the indictment was duplicitous or that the court erred
in not granting the motion for a bill of particulars.
Indeed, the advance sheets over the last few years indicate that the
frequency with which trifling points are presented on appeal on the view
that they are somehow "arguable" 135 is itself so serious an appellate
problem that it warrants discussion.
We can put to one side the phenomenon of the "great case," so-called.
Centuries ago, Lord Coke noted that "many questions are raised rather out
of the weight of the matter than the difficulty of the case." 136 Mr. Justice
Holmes made the same point within fairly recent memory, saying, "But cost
and importance, while they add to the solemnity of our duty, do not increase
the difficulty of decision except as they induce argument upon matters that,
with less mighty interests, no one would venture to dispute." 137
133 143 U. S. 457.
134 "But, it is said, however it might be if this reasoning were applied
generally, it fails when it is confined to the small number who are in the
institutions named and is not applied to the multitudes outside. It is the
usual last resort of constitutional arguments to point out shortcomings of
this sort." Buck v. Bell, 274 U. S. 200, 208, per Holmes, J.
135"Some lawyers are willing to take a case, if it presents what they
describe as an 'arguable' position, on the theory that every man is entitled
to have a lawyer present his case." William D. Mitchell in 64 Harv. L.
Rev. at 352.
136 preface to 10 Co. Rep. (1826 ed.) xxi.
The problem here considered is the tendency, in wholly runof-the-mill
cases, to magnify trivia. Judges have characterized this tendency in various
ways, all essentially similar, none complimentary. Here are some examples:
"piddling quibbling";138 "a worship of the inconsequential";139 "a
contention * * * made for good measure rather than for good reason"; 140
"the remaining miscellany of minor contentions." 141 One court has made
the obvious comment that "It is familiar technique for an appellant to seize
upon every peccadillo committed by the lower court and magnify it until it
becomes a blunder of major proportions";142 another the remark, which
should be equally obvious, that "We do not clutch at gossamers." 143
Those quotations are not taken exclusively from criminal cases, nor even
from appellate opinions; had they been so restricted, there would at least be
this excuse, that some convicted person with the means to retain counsel
wants desperately to stay out of jail, and accordingly grasps at any straw
that comes to hand —the doctrine of tabula in naufragio (or, freely
translated, any port in a storm) did, after all, have some currency in English
equity for many years.144 Insofar as counsel in a criminal appeal has a
choice between weak points and strong ones, he owes it to his client to
abandon those that are weak lest he dilute those that are strong. Insofar as
such counsel has no strong points—and in some criminal trials, even when
they extended over many days and even weeks, there will not be a single
good point for an appeal, much less for certiorari—then there is ultimately
involved a conflict of interest between attorney and client, between the
client who risks his liberty, and the lawyer who stands to injure his
professional reputation.145 That conflict, necessarily, is one that every
lawyer must resolve for himself. But there is hardly the same dramatic
conflict when counsel seizes on and makes picayunish contentions in a civil
case at the trial level.
137 Sanitary District v. United States, 266 U. S. 405, 425.
See also Holmes, J., dissenting in Northern Securities Co. v. United
States, 193 U. S. 197, 400-401: "Great cases, like hard cases, make bad
law. For great cases are called great, not by reason of their real
importance in shaping the law of the future, but because of some
accident of immediate overwhelming interest which appeals to the
feelings and distorts the judgment. These immediate interests exercise a
kind of hydraulic pressure which makes what was previously clear seem
doubtful, and before which even well settled principles of law will bend."
138Clark, J., in Republic of Italy v. De Angelis, 206 F. 2d 121, 124
(C.A.2).
139Leahy, J., in Tobacco and Allied Stocks v. Transamerica Corp., 18
F.R.D. 355, 356 (D.Del.).
140 Murphy, J., in Application of House, 144 F. Supp. 95, 99 (N.D.
Calif.).
141 Medina, J., in Dictograph Products v. Federal Trade Commission,
217 F. 2d 821, 829 (C.A.2).
142Lemmon, J., in Mitchell v. United States, 213 F. 2d 951, 953
(C.A.9). lisRotundo
v. Isthmian Steamship Co., 243 F. 2d 581, 584
(C.A.2) (Per curiam; L. Hand, J., presiding).
144 See 3 Scott, The Law of Trusts (2d ed. 1956) § 311.1.
Perhaps it should be added that while Federal appellate courts have the
power in Federal cases to consider new points not raised below,146 any
request that they do so has hard sledding;147 and of course "a memorandum
of additional points * * * served after another counsel had been added to the
battery" 148 signals the afterthought with all of its infirmities.149 Nor should
it be forgotten that, in the Federal system, a criminal appeal which is
frivolous is subject to dismissal.150
145See Mr. Mitchell's comment, quoted supra, note 135; the passage
then continues: "Other lawyers decline cases which they consider are
without merit, because they take no professional satisfaction in arguing
them; and because the litigant deserves to have his case presented by a
lawyer (if one is available) who believes in it and who, therefore, can
argue it more persuasively. It also is true that a lawyer who becomes
known as one who does not make a practice of accepting cases in which
he does not believe, has a long start in the confidence of the courts and
on the road to victory."
146See Supreme Court Rule 40 (1) (d) (2); Third Circuit, Rule 24 (2)
(b); Fourth Circuit, Rule 10(8); D. C. Circuit, Rule 17(b) (1); F.R. Crim.
P., Rule 52 (b); see Note, Raising New Issues on Appeal, 64 Harv. L.
Rev. 652; compare F.R. Civ. P., Rule 61, and 28 U.S.C. § 2111.
Of course the statement in the text applies only to cases arising within
the Federal system; when the Supreme Court reviews cases arising in
State courts, it does not consider Federal questions not timely raised
below. See Stern and Gressman, Supreme Court Practice (2d ed. 1954)
ch. Ill (F), pp. 85-91.
147E.g., United States v. Spector, 343 U. S. 169, 172-173; Bird v.
United States, 241 F. 2d 516, 520-521 (C.A.I); Armodoros v. Robinson,
241 F. 2d 713 (C.A.7). Note that it took a rehearing in banc before the
Ninth Circuit was convinced that it had the power that is specifically
granted by Criminal Rule 52(b). See Herzog v. United States, 226 F. 2d
561, 235 F. 2d 664, certiorari denied, 352 U. S. 844. The petition for
rehearing filed in that case appears in Chapter XII, infra, pp. 423-429.
148 Fee, J., in Shibley v. United States, 237 F. 2d 327, 334 (C.A.9).
149 A classic if somewhat frightening example of how what appears at
first blush to be a substantial point can be downgraded into
insubstantiality when made too late is Rosenberg v. United States, 346 U.
S. 273. See Section 150 at pp. 376-377, below.
 Just to complete the discussion, two special situations with respect to
weak points should be noted: Appointed counsel owe an affirmative duty to
present points on appeal, regardless of the prospects of success, just so long
as those points are substantial.151 And Government counsel on occasion are
under a duty to confess error. The appellate court is not bound by such
action,152 but if reversal follows the appellate court's acceptance of a
confession of error, it is hardly appropriate for the trial judge then to
complain that he was "sold short." 153
(d) Evasion of issues. At first blush it would appear not only unnecessary
but indeed presumptuous to remind lawyers that their briefs must meet the
other side's arguments. But a number of documents which have passed over
my desk in the last few years indicate that such an obvious admonition still
needs to be emphasized. Unless both the opposition and the court are
hopelessly obtuse—an unlikely coincidence—it is never safe for a lawyer to
write his brief on the wishful assumption that out-of-sight is equivalent to
out-of-mind, or that the difficult points of a case can somehow be disposed
of by being swept under the rug, as it were, either by not deigning to
mention them at all, or else by relegating them to footnotes.
Here are two actual examples:
(i) In Williams v. Lee,15i discussed above (pp. 98-100) in another
connection, the petitioning Indians urged that under the doctrine of
Worcester v. Georgia155 there was no jurisdiction in the State courts to
entertain actions against them in respect of transactions taking place on
their Reservation. In respect of that basic doctrine, petitioners relied, as had
the State court in a previous decision,156 on a presidential veto of a bill that
had proposed to extend State jurisdiction over this particular tribe and on a
repassage by Congress of the same bill minus those jurisdictional
features,157 and also on a subsequent Act which had conditionally conferred
jurisdiction over Indians on a number of States on condition that those
States would take certain steps158—which in fact had not been taken in the
instant case.
150F.R. Crim. P., Rule 39 (a) ; United States v. Johnson, 327 U. S.
106, 113; United States v. Peltz, 246 F. 2d 537 (C.A.2); United States v.
Visconti, 261 F. 2d 215 (C.A. 2); Brown v. United States, 277 F. 2d 204
 (C.A. 8); Watson v. United States, 281 F. 2d 619 (D. C. Cir.); and see the
comments of Lemmon, J., in Price v. United States, 249 F. 2d 17, 18
(C.A.9), and Rystad v. Boyd, 246 F. 2d 246, 249 (C.A.9).
Later instances of appeals dismissed because frivolous are too
numerous for citation.
151 Ellis v. United States, 356 U. S. 674, reversing 249 F. 2d 478 (D.
C. Cir.); Cash v. United States, 357 U. S. 219, reversing 261 F. 2d 731
(D. C. Cir.). See also Hansford v. United States, 357 U. S. 578, and
Kitchens v. United States, 358 U. S. 42. Earlier cases such as United
States ex rel. Tierney v. Richmond, 245 F. 2d 222, and United States v.
Ballentine, 245 F. 2d 223, both C.A.2, are probably no longer law.
152 Young v. United States, 315 U. S. 257; compare Casey v. United
States, 343 U. S. 808; Orloff v. Willoughby, 345 U. S. 83, 87-88.
153 See Petition of Plywacki, 115 F. Supp. 613, 615 (D. Haw.).
154 358 U.S. 217.
The Government argued that in the veto "there is no indication that
jurisdiction already possessed by the respective states should be withdrawn
or that no such preexisting jurisdiction was thought to exist"; and that the
subsequent Act "did not deal with the reserved jurisdiction which the states
already possessed." Both statements appeared—in a footnote! 159
Petitioners accordingly replied,
What 'reserved jurisdiction? What 'pre-existing or reserved state power'?
Such expressions have a nostalgic pre-Appomattox flavor, but that is
assuredly their only distinction. For under the Constitution, there is no
reserved state power or jurisdiction over Indians, and there never has been,
as anyone who troubles to read Worcester v. Georgia, 6 Pet. 515, will soon
learn. Indeed, only this year both the court below as well as the Supreme
Court of the neighboring State of New Mexico held that state courts had no
criminal jurisdiction over Navajo Indians committing within the Navajo
Reservation acts which if done by nonIndians would have violated the
criminal laws of the states concerned. Application of Denetclaw, 83 Ariz.
299, 320 P. 2d 697; State v. Begay, 63 N. M. 409, 320 P. 2d 1017, certiorari
denied, 357 U. S. 918.
 The Supreme Court mentioned the veto and the repassage of the bill less
its objectionable features, pointed out that the State had not accepted
jurisdiction under the later Act—and reaffirmed Worcester v. Georgia in
ringing terms.160
155 6 Pet. 515.
156 See Begay v. Miller, 70 Ariz. 380, 385, 222 P. 2d 624, 627-628.
157 See Sen. Doc. 119, 81st Cong., 1st sess., and 95 Cong. Rec. 14784-
14785. The modified bill became the Act of April 19, 1950, c. 92, 64
Stat. 44, 25 U.S.C. §§ 631-640.
158 Sections 6 and 7 of the Act of August 15, 19-53, c. 505, 67 Stat.
588, 590.
159 Brief for the United States as Amicus Curiae, No. 39, Oct. T. 1958,
p. 7, note 4.
The question which the student of advocacy may well ask himself is,
How can any lawyer worthy of the name really expect to dispose of the
central issue of a case by such glancing (and obviously questionable)
references in a footnote? And how can a lawyer expect that a court will pay
attention to him when he does?
(ii) United States v. Greenberg161 was a case turning on the scope of the
Fifth Amendment's protection against self-incrimination, with particular
reference to the showing of hazard that the witness was required to make
before his claim of privilege would be allowed. Adverse rulings below were
followed by a petition for certiorari, which was "held" during the pendency
of the very similar case of Hoffman v. United States.162 In the opinion
thereafter handed down in the latter case, the prerequisites for claiming the
privilege were set forth in detail; a week later, the judgment in Greenberg
was vacated, and the cause remanded for reconsideration in the light of
Hoffman.163
On such reconsideration, the Court of Appeals (which had also decided
Hoffman) 16i adhered to its prior ruling,165 and when Greenberg then sought
certiorari a second time, his petition was granted.166
 The Government filed an 80-page brief on the merits, the thrust of which
is perhaps best portrayed reflexly167 by the following excerpt from
petitioner's reply:
A. The Government starts its argument (U. S. Br. 21) by quoting that
portion of the opinion in Hoffman v. United States, 341 U. S. 479, 486,
which commences by saying that
The privilege afforded not only extends to answers that would in
themselves support a conviction under a federal criminal statute but
likewise embraces those which would furnish a link in the chain of
evidence needed to prosecute the claimant for a federal crime. But the
Government's brief, though it extends over 80 pages, never goes on to quote
the last portion of the paragraph in question, viz.,
160 358 U. S. at 222-223.
161187 F. 2d 35 (C.A.3).
162 341 U. S. 479.
163 341 U. S. 944.
164 185 F. 2d 617 (C.A.3).
165 United States v. Greenberg, 192 F. 2d 201 (C.A.3).
166 342 U. S.917.
1671 am indebted to the late Mr. Ernest Knaebel, Reporter of Decisions
of the United States Supreme Court for more than 27 years, for this
expression. See Selective Draft Law Cases, 245 U. S. 366, 368: "As it is
manifestly impracticable to restate these arguments [against the
constitutionality of the Selective Draft Law of 1917] separately, perhaps
the best recourse available is to exhibit their leading features reflexly, by
summarizing the answers to them contained in the single brief of the
United States, viz. * * *."
However, if the witness, upon interposing his claim, were required to
prove the hazard in the sense in which a claim is usually required to be
established in court, he would be compelled to surrender the very protection
which the privilege is designed to guarantee. To sustain the privilege, it
need only be evident from the implications of the question, in the setting in
which it is asked, that a responsive answer to the question or an explanation
of why it cannot be answered might be dangerous because injurious
disclosure could result.
(We have italicized the conditional words to emphasize that certainty of
incrimination is not a prerequisite to successful invocation of the
constitutional privilege.)
Nor does the Government at any point quote the further portion of the
Hoffman opinion, id. at 488, where the Court said that
Petitioner could reasonably have sensed the peril of prosecution for
federal offenses ranging from obstruction to conspiracy.
The omitted portions of the Hoffman opinion necessarily undercut all of
the Government's obviously labored endeavors (U. S. Br. 1418, 21-55) to
whittle down the privilege against self-incrimination to the point where it
would be available only in circumstances where the assertion that an answer
would be incriminating would in and of itself incriminate the witness.
Five days after argument, the Supreme Court reversed per curiam—on
the authority of Hoffman.1BS
The case may not have been as open-and-shut as counsel for petitioner
ultimately brought themselves to think—two justices dissented—but how
could any lawyer have thought for a moment that he could overcome the
recently decided Hoffman opinion by simply ignoring those portions thereof
that were unfavorable to him? 169
In short, "Grasp your nettles firmly" is an admonition fully as applicable
to unfavorable points of law as it is to unfavorable facts (supra, Section 25).
168 343 U. S. 918.
169See Chapter XIV, below, for a comprehensive discussion of the
origin of and sequel to the Greenberg and Hoffman cases, and for the
complete text of the oral argument in the former.
(e) Requests to overrule cases. Another line of argument that it is usually
desirable to avoid is the out-and-out request that a governing precedent be
squarely overruled. Lower courts can't overrule cases (although, believe it
or not, they are on occasion asked to do so) ,170 and a court of last resort is
reluctant to do so.
The progress of Federal constitutional law from 1937 to 1960 is full of
instances where old precedents were overruled,171 but there have been few
overrulings in the Supreme Court in the last ten years. The doctrinal
hardening became quite evident in the 1947 Term, when three requests for
the overruling of prior precedents failed.172 Contrariwise, in the 1948 Term,
where the offending precedent was sought to be distinguished on the ground
of intervening legislation and overruling was not requested, the Court held
that the legislation was immaterial, and overruled the earlier case, largely
because the prevailing brief had demonstrated the factual unsoundness of
the doctrine established by that case.173 Since then, most of the recent
doctrinal changes have been effected by "distinguishing" earlier cases,174
and many of these changes reflect the inevitable transition in general
outlook that is best characterized as an altered climate of opinion.175
170 This ;s perhaps subject to the qualification that on occasion lower
courts or lower court judges correctly divine that a decision of a court of
last resort is about to be overruled. See Barnette v. West Virginia State
Board of Ed., 47 F. Supp. 251 (S.D.W. Va.), affirmed, 319 U. S. 624,
where the court, per Parker, J., correctly foretold the impending demise
of Minersville School Dist. v. Gobitis, 310 U. S. 586; United States v.
Girouard, 149 F. 2d 760, 764767 (C.A. 1), reversed 328 U. S. 61, where
Woodbury, J., dissenting, accurately predicted the early end of the
Schwimmer (279 U. S. 644) and Macintosh (283 U. S. 605) cases; United
States v. Smith, 106 F. Supp. 9 (S.D. Calif.), where Yankwich, D. J.,
relied on the dissent of Cardozo, J., in United States v. Constantine, 296
U. S. 287, 297, as correctly representing the law, in preference to a
decision which followed the majority opinion, and which was promptly
reversed in consequence, see United States v. Kahriger, 105 F. Supp. 322
(E.D.Pa.), reversed, 345 U. S. 22; and Browder v. Gayle, 142 F. Supp.
707 (M.D.Ala.), affirmed, 352 U. S. 903, where Rives, J., correctly
predicted that Plessy v. Ferguson, 163 U. S. 537, lacked current vitality
even in the field of intrastate transportation.
171
See Blaustein and Field, "Overruling" Opinions in the Supreme
Court, 57 Mich. L. Rev. 151, which collects the cases through 1958.
 That list must however be used with caution for a number of reasons.
First, it included as "overruled" cases where affirmance by an equally
divided court was followed on rehearing by a reversal. Since an
affirmance by an equally divided court does not constitute an
authoritative precedent, see United States v. Pink, 315 U. S. 203, 216,
and cases there cited, I should not consider that any overruling was
involved in that situation. Second, it treats as "overruled" the earlier
decisions in the first court-martial cases, whereas in fact the earlier
opinions were, on rehearing, not "overruled" but "withdrawn." See
headnote in Reid v. Covert, 354 U.S. 1. Third, it includes a good many
cases that were only overruled by implication—and those are precedents
that have a way of coming to life again. See pp. 110-111, infra.
172 (a) In United States v. South Buffalo R. Co., 333 U. S. 771, the
Government asked that United States v. Elgin, J. & E. R. Co., 298 U. S.
492, be overruled, but the Court, by a vote of five to four, declined to do
so, on the ground that Congress had specifically refused to overturn the
earlier case by legislation.
(b) In Williams v. Fanning, 332 U. S. 490, which involved the question
whether, in an action for an injunction against a subordinate public
officer, his official superior was an indispensable party, the Government
argued that Gnerich v. Rutter, 265 U. S. 388, and Webster v. Fall, 266 U.
S. 507, were utterly inconsistent with Colorado v. Toll, 268 U. S. 228; it
urged, therefore, that the latter case be squarely overruled. The Court
held that the cases were consistent on their facts and that, in the situation
presented—an action to restrain a local postmaster's enforcement of a
mail fraud order issued by the Postmaster General—the superior officer
was not an indispensable party. Nothing was overruled—except, silently,
the language and reasoning of Gnerich v. Rutter. See, in this connection,
the discussion in 3 Davis, Administrative Law Treatise (1958) §27.08.
(c) In United States v. Line Material Co., 333 U. S. 287, and United
States v. U. S. Gypsum Co., 333 U. S. 364, the Government urged the
Court to overrule United States v. General Electric Co., 272 U. S. 476,
and its doctrine that price-fixing pursuant to a patent license did not
constitute a violation of the Sherman Anti-Trust Act. The Court declined
to do so, and decided each of the two cases in favor of the Government
on the basis of their particular facts.
 173 Cosmopolitan Shipping Co. v. McAllister, 337 U. S. 783,
overruling Hust v. Moore-McCormack Lines, 328 U. S. 707.
174 Neither the listing in this nor the footnote following should be
regarded as anything more than illustrative.
Compare the following sets of decisions: Hoffman v. United States,
341 U. S. 479, with Mason v. United States, 244 U. S. 362; Rutkin v.
United States, 343 U. S. 130, with Commissioner v. Wilcox, 327 U. S.
404; Brown v. Board of Education, 347 U. S. 483, with Gong Lum v.
Rice, 275 U. S. 78, and Missouri ex rel. Gaines v. Canada, 305 U. S.
337; La Buy v. Howes Leather Co., 352 U. S. 249, with Los Angeles
Brush Corp. v. James, 272 U. S. 701; United States v. Union Pacific R.
Co., 353 U. S. 112, with Northern Pacific R. Co. v. Townsend, 190 U. S.
267; United States v. duPont & Co., 353 U. S. 586, with Thatcher Mfg.
Co. v. Federal Trade Comm., 272 U. S. 554, and International Shoe Co.
v. Federal Trade Comm., 280 U. S. 291; Smith v. Sperling, 354 U. S. 91,
with Doctor v. Harrington, 196 U. S. 579, Venner v. Great Northern R.
Co., 209 U. S. 24, and Koster v. Lumbermens Mutual Co., 330 U. S. 518;
Indian Towing Co. v. United States, 350 U. S. 61, with Dalehite v. United
States, 346 U. S. 15; Moore v. Michigan, 355 U. S. 155, with Quicksall v.
Michigan, 339 U. S. 660; Green v. United States, 355 U. S.- 184, with
Trono v. United States, 199 U. S. 521; United States v. City of Detroit,
355 U. S. 466, and related cases, with United States v. Allegheny County,
322 U. S. 174; Youngstown Co. v. Bowers, 358 U. S. 534, with Hooven ir
Allison Co. v. Evatt, 324 U. S. 652; United States v. Parke, Davis ir Co.,
362 U. S. 29, with United States v. Colgate & Co., 250 U. S. 300.
I have found but two square overrulings since the end of the 1948
Term.176 That circumstance deserves to be stressed, for it involves far more
than pedantic insistence on accurate terminology. The fact is that, unless a
case is squarely overruled, it is still available later on.
175 Compare the following sets of decisions: Zorach v. Clauson, 343
U. S. 306, with McCollum v. Board of Education, 333 U. S. 203; Offutt v.
United States, 348 U. S. 11, with Sacher v. United States, 343 U. S. 1;
Shaughnessy v. Pedreiro, 349 U. S. 48, with Heikkila v. Barber, 345 U.
S. 229; Quinn v. United States, 349 U. S. 155, Emspak v. United States,
349 U. S. 190, and Bart v United States, 349 U. S. 219, with Rogers v.
United States, 340 U. S. 367; Slochower v. Board of Education, 350 U.
S. 551, with Garner v. Los Angeles Board, 341 U. S. 716, and Adler v.
Board of Education, 342 U. S. 485; Watkins v. United States, 354 U. S.
178, with, e.g., United States v. Bryan, 339 U. S. 323, and United States
v. Fleischman, 339 U. S. 349; Teamsters Union v. Vogt, Inc., 354 U. S.
284, with Thornhill v. Alabama, 310 U. S. 88, and American Fed. of L. v.
Swing, 312 U. S. 321; Rowoldt v. Perfetto, 355 U. S. 115, with Galvan v.
Press, 347 U. S. 522; Machinists v. Gonzales, 356 U. S. 617, with
Garner v. Teamsters, ire. Union, 346 U. S. 485; Watkins v. United States,
354 U. S. 178, with Barenblatt v. United States, 360 U. S. 109; Sweezy v.
New Hampshire, 354 U. S. 234, with Uphaus v. Wyman, 360 U. S. 72.
176United States v. Rabinowitz, 339 U. S. 56, overruling Trupiano v.
United States 334 U. S. 699; Burstyn v. Wilson, 343 U. S. 495, overruling
Mutual Film Corp. v. Industrial Comm., 236 U. S. 230.
Elkins v. United States, 364 U. S. 206, refused to follow the state
seizure aspect of Weeks v. United States, 232 U. S. 383, 398, but did not
specifically overrule the earlier decision.
Plessy v. Ferguson, 163 U. S. 537, is now without vitality—see, e.g.,
Gayle v. Browder, 352 U. S. 903, and cases there cited—but it has yet to
be specifically overruled. See Brown v. Board of Education, 347 U. S.
483, 494-495.
The older cases on substantive due process may similarly be regarded
as no longer having vitality—cf. Williamson v. Lee Optical Co., 348 U.
S. 483— whether or not they have been in fact expressly overruled.
In Ullman v. United States, 350 U. S. 422, the Court refused to
overrule Brown v. Walker, 161 U. S. 591; in United States v. Burnison,
339 U. S. 87, it similarly refused to overrule United States v. Fox, 94 U.
S. 315.
The notorious "dirty business" wiretapping case—Olmstead v. United
States, 277 U. S. 438—has yet to be overruled. See Goldman v. United
States, 316 U. S. 129, 136; On Lee v. United States, 343 U. S. 747, 758,
762.
The opinions in Kinsella v. Krueger, 351 U. S. 470, and Reid v.
Covert, 351 U. S. 487, were not overruled, but, on rehearing, were
 "withdrawn." See 354 U. S. at 1.
The case of Federal Baseball Club v. National League, 259 U. S. 200,
still stands as to baseball (Toolson v. New York Yankees, 346 U. S. 356),
but not as to theatrical productions (United States v. Shubert, 348 U. S.
222), boxing (United States v. International Boxing Club, 348 U. S. 236),
or football (Radovich v. National Football League, 352 U. S. 445).
Thus, after the development of the stream-of-commerce concept in the
antitrust field,177 it might very properly have been assumed that the original
antitrust decision, United States v. E. C. Knight Co.,178 was completely
devoid of vitality. In the Sugar Institute case in 1936,179 which involved the
same industry, the Knight case was not even cited by counsel,180 let alone
by the Court. But less than two months later, when the Guffey Coal Act
came before the Court in the Carter Coal case, the Knight decision was not
only cited, but was strongly relied upon as authority for invalidating the
legislation.181 Truly, cases that have not been squarely overruled can
become "ghosts that slay." 182
To recur to the basic topic of the present discussion:
There is always a basic reluctance to overturn what was once decided, for
a number of reasons. First, no one likes to admit that he was once wrong,
particularly in the recent past, and judges who have once decided a point
after full consideration are certainly no exception to that very human
reaction. Second, even judges who most ardently desire to effect new
departures strive to maintain at least the appearance of continuity. Indeed, a
distinguished legal historian has pointed out that the way to spot Lord
Coke's innovations is to look for a sentence beginning 'Tor it is an ancient
maxim of the common law." 183
Consequently, particularly when the precedent in the way is of fairly
recent vintage, it is far easier for the advocate to suggest distinctions and
differentiations. Frequently an effective technique is to talk around the
offending case and to give it a form of silent treatment, by emphasizing the
principles that lead to a different conclusion. At the very least, this
technique may result in a favorable decision on another ground.
177 E.g., Swift and Company v. United States, 196 U. S. 375.
 178 United States v. E. C. Knight Co., 156 U. S. 1.
179 Sugar Institute v. United States, 297 U. S. 553.
180 As their briefs are set forth in 80 L. ed. at 860-862.
181 Carter v. Carter Coal Co., 298 U. S. 238, 300-301.
182Frankfurter, A Note on Advisory Opinions, 37 Harv. L. Rev. 1002,
1008 (1924).
183 "As a rule of thumb it is well to remember that sentences beginning
Tor it is an ancient maxim of the common law,' followed by one of
Coke's spurious Latin maxims, which he could manufacture to fit any
occasion and provide with an air of authentic antiquity, are apt to
introduce a new departure. Sentences such as And by these differences
and reasons you will better understand your books,' or 'And so the doubts
and diversities in the books well resolved,' likewise indicate new law. If I
may formulate a theorem of my own, I advance this—the longer the list
of authorities reconciled, the greater the divergence from the cases cited."
Thorne, Sir Edward Coke 15521952 (Selden Society Lecture) 7.
Thus, in the Knauer case,184 the Government's brief dealt with the
attachment-to-the-principles-of-the-Constitution point of the Schneiderman
case 185 largely by rearguing that question de novo, as an original
proposition. As indicated above, Section 34 (b), the Court decided the
Knauer case on the other ground, though I had the impression at the oral
argument that at least some members of the Schneiderman majority were
seeing the attachment point in a new light.186 Similarly, in the Haupt
treason case,187 it was necessary to undermine the apparent rationale of the
then but recently decided Cramer case.188 Again, the brief dealt with many
of the Cramer premises sub silentio in preference to making an all-out
assault upon them.189 In both instances, questions from the bench
emphasized the points of similarity with the earlier decisions, and in both
instances the replies to those questions stressed what appeared to be the
determinative differences.
The same technique is recommended even when the precedent is old.
Thus, in the first of the recent cases involving the power to try civilian
dependents by court-martial, the Supreme Court in its original opinion 190
relied very strongly on In re Ross/91 an 1891 decision that had upheld, as
against a claim to jury trial, the trial of a seaman on an American ship by an
American consular court in Japan.
After the rehearing in the first court-martial cases had been granted, one
of the problems confronting counsel for the civilian women was, How deal
with Ross? As is pointed out in detail below (Section 53), there were easily
demonstrable reasons why a square overruling of the Ross case would not
have been palatable, even though the decision was 65 years old, even
though it rested on a proposition no longer valid, and even though it would
probably have been decided differently had it arisen de novo.
184 Knauer v. United States, 328 U. S. 654.
185 Schneiderman v. United States, 320 U. S. 118.
186See the paper cited in note 110, p. 93, supra, where the argument
was more fully developed than was possible in the brief.
187 Haupt v. United States, 330 U. S. 631.
188 Cramer v. United States, 325 U. S. 1.
189 See Brief for the United States in Haupt v. United States, No. 49,
Oct. T. 1946. A portion thereof was set forth at pp. 342-370 of the earlier
version of this work.
190 Kinsella v. Krueger, 351 U. S. 470.
191 140 U. S. 453.
Accordingly, Ross was distinguished on a number of grounds. This
proved to be a sound approach; on rehearing in the courtmartial cases the
Court ruled the other way, in a series of opinions which showed that a
majority of the justices would not have been prepared to overrule In re
Ross.
A somewhat stronger approach was taken in Elkins v. United States,1*2
the very recent case which overturned the "silver platter" doctrine that dated
from Weeks v. United States.193 Following the conclusion reached by the
District of Columbia Circuit in Hanna v. United States,Wi it was argued on
behalf of Elkins, not that the state seizure aspect of Weeks should be
overruled as an original proposition, but rather that the very basis of that
part of Weeks, which rested on the unchallenged proposition that the Fourth
Amendment did not bind the States,195 had been undercut by the subsequent
holding in Wolf v. Colorado195 to the effect that the basic right of freedom
from unreasonable searches was a part of the Due Process of Law protected
by the Fourteenth Amendment.197 That is to say, counsel urged that the
earlier cases had already been overruled 198—and the Supreme Court
agreed, but only by a 5-4 vote.199
192 364 U. S. 206.
193 232 U. S. 383, 398.
194Hanna v. United States, 260 F. 2d 723, overruling Shelton v.
United States, 169 F. 2d 665 (D. C. Cir.), certiorari denied, 335 U. S.
834.
195 Weeks v. United States, 232 U. S. at 398: "What remedies the
defendant may have against [the State officers] we need not inquire, as
the Fourth Amendment is not directed to individual misconduct of such
officials. Its limitations reach the Federal government and its agencies."
196 3 3 8 U. S. 25.
197 Wolf v. Colorado, 338 U. S. at 27-28: "The security of one's
privacy against arbitrary intrusion by the police—which is at the core of
the Fourth Amendment—is basic to a free society. It is therefore implicit
in 'the concept of ordered liberty' and as such enforceable against the
States through the Due Process Clause. The knock at the door, whether
by day or by night, as a prelude to a search, without authority of law but
solely on the authority of the police, did not need the commentary of
recent history to be condemned as inconsistent with the conception of
human rights enshrined in the history and the basic constitutional
documents of English-speaking peoples.
"Accordingly, we have no hesitation in saying that were a State
affirmatively to sanction such police incursion into privacy it would run
counter to the guaranty of the Fourteenth Amendment. * * *"
As a matter of advocacy—i.e., persuasion, because it is impossible to
stress too much the proposition that advocacy is persuasion—the oblique
approach undoubtedly contributed to the successful outcome in all of the
instances considered above.
My own view, therefore, is that unless we once more reach a fluid period
like that of 1937-1947, or unless the obstacle in question is really on its last
legs, it is generally better not to ask that a case be overruled. Distinguish it
away, ignore it—but leave the final coup de grace for the court itself to
administer, after you have demonstrated in your brief and argument that this
is what logic and consistency require.200
By way of conclusion it may be ventured that, in law as in war or football
or even love, the direct frontal assault on a prepared and fortified position is
only rarely a successful maneuver.

Section 36. Convincing presentation of the evidence in

argument on the facts.
—The problem of effectively arguing facts boils down to so marshalling
your evidence as to make it thoroughly convincing to the judicial reader.
Basically, three steps are necessary: assertion, presentation, and conclusion.
First you state what you intend to show. Next you set forth the evidence,
using pertinent quotations from documents and testimony, stressing any
inconsistencies in the case against you, and making full use of that most
deadly of all comparisons, the parallel column technique. Finally you
conclude, generally by restating your original assertion.
»8 "The doctrinal basis of the 'silver platter' doctrine, which was
simply the undoubted rule that the Fourth Amendment does not apply eo
nomine to the States (Weeks v. United States, 232 U. S. 383, 398), has
been completely undercut by the later holding of Wolf v. Colorado, 338
U. S. 25, to the effect that freedom from unreasonable searches and
seizures is protected from State action by the Due Process clause of the
Fourteenth Amendment.
"For all of these reasons, we submit that the State seizure aspect of
Weeks and all later expressions to the same effect 'can no longer be
guiding' (Rochester Tel. Corp. v. United States, 307 U. S. 125, 143), that
'such vitality, as a precedent, as [the State seizure aspect of Weeks] then
had has long since been exhausted' (United States v. Darby, 312 U. S.
 100, 117), and that accordingly the 'silver platter' rule should 'be allowed
a deserved repose' (Holmes, J., in Adkins v. Children's Hospital, 261 U.
S. 525, 567, 570)." Brief for the Petitioners, pp. 72, 74.
imElkins v. United States, 364 U. S. 206, and note that Mr. Justice
Frankfurter was prepared to reverse on the ground that the evidence in
question had actually been suppressed by the State courts concerned. 364
U. S. at 249251. Note, in this connection, his vote for reversal in the
analogous case of Camara v. United States, 364 U. S. 283.
200 See pp. 108-109 and the instance cited in note 173, supra.
Whenever the case is at all complicated, it is well to divide up the several
points you are making, and to make liberal use of argumentative
subheadings, so that the direction of your thought is clear. Remember that
what you are aiming at is to leave conviction in the minds of your readers,
and remember also that no characterization, however apt, ever has the stark
impressiveness of verbatim extracts from damaging testimony or from
letters that the writer later wishes he had never written. And I repeat: Stress
the inconsistencies in your opponent's documents and testimony, bear down
on every self-contradiction in the record. For although of course it is the
law that a very bad man may have a very good case, none the less courts are
human and nobody loves a liar.
Bear in mind, however, that the technique of arguing facts is very
different from that appropriate for stating facts. In writing the Statement of
Facts (see Sections 23 to 28), the aim is to state the facts appealingly but
straightforwardly, so that the effect derives from the selection and
juxtaposition of the facts. Once the Argument is reached, however, the facts
should be frankly argued and commented on. The only limitations are those
dictated by good taste and professional standards (see Sections 28 and 83),
and by the caution that on occasion a restrained argument may be more
effective than one that seems to shout too much.
In the Statement of Facts, you get your color from the facts themselves;
in the Argument, you get your effect either from arguing inferences from
the undisputed facts or from frankly arguing to a conclusion from disputed
facts. You do not add comments of your own in the first instance, you do in
the second.
 The foregoing principles can perhaps not be profitably illustrated except
by taking actual briefs involving questions of fact, and comparing the way
the evidence is simply set out in the Statement of Facts with the way that
same evidence is later argued in the Argument. Two examples of such briefs
appeared in Chapter 13 of the earlier version. One involved a case where
summary judgment—plus a finding of fraud—was entered below and
sustained on appeal;201 the other was a denaturalization case where the
second appellate court did not consider itself bound by concurrent findings
below, so that all the evidence had to be reargued as an original
proposition.202 The briefs are longish, considerably too long for inclusion in
the present revision.
201Isenberg v. Biddle, 125 F. 2d 741 (D. C. Cir.).
Both briefs prevailed, and the decision in each instance rested on the
facts. Frequently, however, the carefully prepared factual argument in a
brief appears to be love's labor lost, because the case goes off on a point of
substantive law or on a question of jurisdiction. Whether one's labor is
actually lost depends on an intangible of the judicial process that cannot be
stated in statistical terms, viz., on how far a court deciding a problem of
jurisdiction is really affected or influenced by the circumstance that one of
the parties is shown by the record to have been an arrant cheat. Does a good
brief arguing facts really help the jurisdictional argument in such a
situation? All that can be said with assurance is this—it certainly doesn't do
any harm.
It should be added, though perhaps only by way of reminder, that the rule
that the Statement of Facts should be free of editorial comments and
argumentative matter by no means dispenses with the necessity that it set
forth the facts as effectively and appealingly as the record will permit. The
examples discussed in Section 27, above, and set out in Chapter XII, below,
show how a case frequently turns, not so much on how the facts are argued
in the Argument, as on how they are arranged in the Statement of Facts.

Section 37. Careful attention to all portions of the brief.

— Just as it is a mistake to toss in a dry statement of facts on top of a
good argument on the law, and thus to mar the finished product, perhaps
with irreparable injury to the case, so also it is a mistake to neglect any
other portion of the brief. The circumstance that these other portions are
easier to write or less important still does not warrant giving them so little
attention that they depreciate the quality of the whole. Three parts of a brief,
too frequently given but little care, are considered here.
(a) Summary of argument. The rules of the Supreme Court and of some
circuits require that all briefs, or all except the very shortest ones, contain a
summary of the argument.203 A number of courts prescribe in detail just
how such a summary is to be constructed, and require that it contain a
citation to every authority relied upon in the argument proper.204 What
follows is addressed only to the usual situation, not to the specially
prescribed forms.
202Knauer v. United States, 328 U. S. 654.
203 Supreme Court Rule 40(1) (f) (in all briefs on the merits, but not in
other briefs where the argument portion does not exceed 20 printed
pages; and not in reply briefs, see Rule 40 (4) ); Ninth Circuit, Rule 18
(2) (e); D. C. Circuit, Rule 17(b) (8).
First of all, consider the importance of the summary. It is required in
order that the court may have a bird's-eye view of your argument, in
somewhat more elaborate form than that available from the index (which,
of course, simply sets forth your headings) . And, mark this, the summary is
one of the portions of the brief read at the outset.205 You will in
consequence be well advised to make your summary as appealing as
possible, rather than dry-as-dust, and, generally, to expand it substantially
over a mere repetition of your headings.206
Therefore, within the space at your disposal, don't be afraid to make it
long enough to be effective. The real secret of a good summary of argument
is to go beyond mere assertion, because the further you get beyond that, the
more convincing the summary will be to the reader. And, although a
summary normally should not cite many cases (except when specifically
required by rule of court), it is a very good idea to sprinkle your summary
with a few of the leading authorities on which you rely. It is well, too, to set
off the paragraphs of the summary of argument with roman numerals and
sub-letters corresponding to the divisions of the argument proper.
 One caution to be added is that the summary should not deviate from the
Argument proper; it should be a synopsis of the Argument, not a novel or
different train of thought.
(b) Conclusion. Generally the conclusion should be pretty formal, as for
example:
204See Seventh Circuit, Rule 17(a) (3); Eighth Circuit, Rule 11(b)
(Fourth).
205The D. C. Circuit, in a note to its Rule 17 (b) (8), states: "Because
the summary of argument if properly prepared is most helpful to the
court in following the oral argument and will often render unnecessary
the making of inquiries by the court which consume time allowed for
argument, counsel are urged to prepare the summary with great care."
206 Supreme Court Rule 40(1) (f) says of the summary of argument, "It
should not be a mere repetition of the headings under which the
argument is arranged." And the D. C. Circuit, in the passage quoted from
in the preceding note, says, "The summary of the argument should not be
a mere repetition of the statement of points or of the assignments of
error. The summary should be a succinct, but accurate and clear, picture
of the argument actually made in the brief concerning the points or
assignments."
The judgment below should be affirmed.
For the foregoing reasons, the judgment below should be reversed, with
directions to dismiss the petition.
Or, in a supplemental brief:
For the foregoing additional reasons, the judgment of the district court
should be reversed, with directions to enter a judgment granting appropriate
relief to the appellant.
On occasion, it is helpful to expand the conclusion somewhat, and to
summarize the nub of the argument. Thus, in the case that involved the
refusal of a State court to entertain an action based on a Federal statute,207
the conclusion of the petitioner's brief read:
 The decision below is based upon a misconception of the nature of the
federal system. The judgment should therefore be reversed with instructions
to enter judgment on the verdict.
And, in the Haupt treason case,208 a long brief was concluded as follows:
Petitioner was convicted of treason after a sober, careful, and eminently
fair trial, on the basis of evidence clearly establishing by the required two
witnesses a number of legally sufficient overt acts of aid and comfort to the
enemy, and clearly showing intent to betray. Reversal of the judgment
below can be supported only by artificial refinements and technicalities
which find no support in the treason clause of the Constitution. We
therefore respectfully submit that the judgment below should be affirmed.
Similarly, in the Cleveland Stock Yards case,209 the prevailing brief,
some points of which have already been set out in Section 30 (supra, p. 70),
concluded as follows:
The ruling of the district court sanctions the continued enforcement of a
private contractual arrangement which obstructs the free flow of interstate
commerce by the levy of a discriminatory toll on a single commodity. The
judgment of the district court should therefore be reversed, with directions
to dismiss the complaints.
It is not generally profitable to extend a conclusion further; it loses its
effectiveness if made too long or it is turned into a peroration.
207 Testa v. Katt, 330 U. S. 386.
208 Haupt v. United States, 330 U. S. 631.
209 United States v. Baltimore ir O. R. Co., 333 U. S. 169.
One caution: Never fail to indicate just what kind of relief you want in
addition to reversal, e.g., reinstatement of the judgment of the trial court, or
release of the appellant from custody, or dismissal of the indictment. Be
specific so that the court's order will likewise be specific.
Thus, in the prevailing brief on rehearing in the first courtmartial-of-
dependents cases,210 counsel for the civilian women were anxious to
dispose of the suggestion, made by the Government at the original hearing,
that in the event Article 2 (11) of the Uniform Code of Military Justice were
held unconstitutional, the case of Mrs. Smith should be remanded for a
determination of the scope of Article 2 (10).211 Accordingly, their
conclusion was framed in these terms:
The military jurisdiction over civilians that is involved in these cases
cannot be supported as a proper exertion of constitutional power. Its present
exercise not only violates express provisions of the Constitution, it is
violative as well of every American tradition since the beginning.
The judgment in No. 701 should therefore be affirmed; and that in No.
713 should be reversed, with instructions to discharge Mrs. Dorothy
Krueger Smith from custody forthwith.
The judgment entered disposed of the latter case accordingly.212 But
where, through inadvertence or otherwise, a party fails to ask for the relief
to which he is actually entitled, there are apt to be mistakes—and a lot of
very red faces all around.213
210 Reid v. Covert and Kinsella v. Krueger, 354 U. S. 1.
211 Article 2(11), now 10 U.S.C. §802(11), purported to confer
courtmartial jurisdiction over all accompanying civilians overseas at all
times; Article 2(10) covered only the traditional jurisdiction over "In
time of war, all persons serving with or accompanying an armed force in
the field." See Winthrop, Military Law & Precedents (2d ed. 1896) *136-
*137; 14 Op. Atty. Gen. 22.
Mrs. Smith had been living in Japan during the period of hostilities in
Korea, and one question, not litigated at the original hearing (United
States v. Kinsella, 137 F. Supp. 806 (S.D.W.Va.)), was whether such
residence amounted to her having been "in the field." The Government
had argued (Reply Brief for Appellant and Petitioner, Nos. 701 and 713,
Oct. T. 1955, p. 27, note 20), "There is, in our view, substantial ground
for holding Article 2(10) applicable. In the event of reversal in this case
on the ground that Article 2(11) is invalid, that question should remain
open on the remand."
212"In No. 713, Kinsella v. Krueger, the judgment of the District Court
is reversed and the case is remanded with instructions to order Mrs.
 Smith released from custody." 354 U. S. at 41. See 354 U. S. at 34, note
61, for references dealing with the scope of Article 2 (10).
(c) Appendix. The Appendix in this connection is not the so-called
Appendix Record now required by the rules of most Federal circuits,
pursuant to which counsel print pertinent portions of the record (which is
not separately printed), as an appendix to their briefs, but is the Appendix to
the brief that contains the collection of statutes involved and similar
materials, whenever such matter is too long to be set out in the brief proper.
The basic cautions, so far as statutes are concerned, are to quote from the
original statute, and, whenever amendments are pertinent, to show clearly
and unmistakably the development of the statute through successive
amendments.
213 Thus, in a recent case, a petition for certiorari urged that "the
action of the Courts of Appeals must be reviewed and reversed here."
The Court did so summarily, without argument. Union Trust Co. v.
Eastern Air Lines, 350 U. S. 907. Respondent petitioned for rehearing,
seeking alternatively (a) vacating of the order granting the writ, (b)
setting of the case for hearing, and (c) remanding the case to permit the
Court of Appeals to pass on the several issues left undecided, see 221 F.
2d 62 (D. C. Cir.). Two and a' half months later, the Supreme Court
amended its order consistently with the third alternative. Union Trust Co.
v. Eastern Air Lines, 350 U. S. 962.
In that instance, there never had been a hearing on the merits, and the
error reflected, certainly in part, the effect of a summary disposition.
Compare Brown, Process of Law, 72 Harv. L. Rev. 77. But, on occasion,
the same kind of mistake follows after full briefing and argument.
Thus, some years back, the Court of Claims entered judgment in favor
of the plaintiff in the sum of $3,227.93, and the Government petitioned
for certiorari, assigning as error the entry of judgment for $1,877.93 in
respect of a particular item, as to which it was contended that the
contracting officer's determination was final. John McShain, Inc. v.
United States, 88 C. Cls. 284, certiorari granted, 307 U. S. 619. The
single item was the only one in issue, but the Government concluded by
saying, "It is respectfully submitted that the judgment of the Court of
Claims should be reversed, and the cause remanded with instructions to
 enter judgment in favor of the United States." Less than three weeks after
the argument the Supreme Court entered a memorandum Per Curiam in
the precise language of the conclusion in the brief, viz., "The judgment is
reversed, and the cause is remanded to the Court of Claims with
instructions to enter judgment in favor of the United States. [Citing
cases.]" United States v. John McShain, Inc., 308 U. S. 512. This
deprived the respondent of the sums admittedly due, with the result that,
four weeks later, the Court had to amend its order to read: "The judgment
is reversed to the extent that it includes the $1,877.93 alleged to be due
from the United States in paragraphs XIV through XXIV of the petition
to the Court of Claims, and the cause is remanded to the Court of Claims
with instructions to enter judgment in favor of the United States with
regard to this item. [Citing cases.]" United States v. John McShain, Inc.,
308 U. S. 520.
Remember, with reference to federal statutes, that the United States Code
is only prima facie evidence of the law, except where particular titles have
been enacted into positive law.214 At this writing, as of the close of the 86th
Congress, the following titles had been so enacted: 1 (General Provisions);
3 (The President); 4 (Flag and Seal, Seat of Government, and the States); 6
(Official and Penal Bonds) ; 9 (Arbitration); 10 (Armed Forces); 13
(Census); 14 (Coast Guard) ; 17 (Copyrights) ; 18 (Crimes and Criminal
Procedure); 23 (Highways); 28 (Judiciary and Judicial Procedure); 32
(National Guard); 35 (Patents); 38 (Veterans' Benefits) ; and 39 (The Postal
Service) .215 In the absence of such enactment, you will frequently do better
to rely on the Statutes at Large.
I know that when I was primarily a State practitioner, I had the notion
that the United States Code was all that counted. After coming to
Washington, however, I soon found out that the experts in the various
Federal specialties never used Code citations except for purposes of parallel
reference; they always talked about section so-and-so of the National
Defense Act, or of the Mineral Leasing Act, or of the Puerto Rican Organic
Act, or of sections thus-and-so of the Revised Statutes. Consequently, I
learned, or thought I did, to use the Code primarily as a secondary and
parenthetical citation, citing and quoting the statute in the first instance as it
appeared in the Statutes at Large.
 I say "or thought I did" because in one case I didn't check the Appendix
carefully, and the statutes involved were printed there as they appeared in
the Code, namely, amended up to date. The case involved the effect of
successive amendments to the governing statute, and while I was up on my
feet, Chief Justice Stone complained in open court that he didn't like the
Appendix because it didn't show him the statute before and after. There are,
I can assure you, more comfortable courtroom experiences than that one. So
—
(i) Always show the statute before and after, whenever something turns
on the amendment.
2141 U.S.C. § 204 (a). For a dramatic instance of the inclusion in the
Code of a provision that in fact had been repealed, see Stephan v. United
States, 319 U. S. 423 (no direct appeal to the Supreme Court in capital
cases).
215 The current list of Titles that have been enacted into positive law
will be found in a note following the text of 1 U.S.C. § 204 in the pocket
part to the USCA.
(ii) If the statute has been amended from time to time, but the case isn't
affected thereby, print the statute as it was at the time in question, e.g.,
when the offense was committed, and indicate that fact.
(iii) Use any available typographical aid to point up the amendments—
italics for the new portions, brackets for the old ones, explanatory footnotes,
and so forth. And—
(iv) Check your Appendix carefully; you just can't afford to let it go with
a once-over-lightly. (I know!)
Of course, an Appendix to a brief is not necessarily restricted to statutes.
In appropriate cases, it should set out executive regulations; texts of
administrative rulings; legislative materials, whether excerpts from debates
or from committee reports; opinions in cases either unreported or not yet
reported; forms of conveyances or of relevant documents; explanations of
related proceedings; identification, by way of dramatis personae, of the
individuals involved in the case (as for instance in complicated antitrust
proceedings involving many corporate defendants, each having many
individual officers who are referred to in the brief); lists of exhibits; and the
like. Include whatever is relevant or whatever may be of assistance to the
court in understanding the case and its background.
In this connection it is appropriate to point out the advisability, when
listing the appendices in the index at the beginning of the brief, to indicate
what each contains. "Appendix A, Appendix B, and Appendix C," showing
where each may be found, does nothing either to whet a judicial reader's
curiosity or to add to his knowledge of the case; whereas setting forth the
subject matter on the index page, as "Appendix A—Statutory provisions;
Appendix B—Summary of Land Court proceedings; Appendix C—Form of
territorial conveyance," does, at the very least, indicate the nature of the
Appendix materials.

Section 38. Leaving an impression of conviction with the reader

and satisfying his curiosity.
—If a case is a close one, even the most experienced and learned judges
will be in doubt after having read the briefs on both sides. But no one
should be left either in doubt or with curiosity unsatisfied after reading the
brief on only one side. If anyone is, then the lawyer representing that
particular side hasn't written an effective appellate brief.
I have left this element for the end, not because it is the least important
but because it is really the sum-total of what you are seeking to do when
you sit down to write a brief. At the very least, the brief must be convincing
by itself. At the very least, your brief should be in such shape that, if the
other side filed nothing, a judge reading your brief would understand the
case and be persuaded that you should prevail.
Of course, there isn't any magic talisman for that. All the other items that
have been discussed contribute to it, yes, but every case differs from every
other case, and so the techniques that carry conviction to the reader in one
situation will fail to do so in another.
Perhaps I can best explain what I am driving at under this heading by
recalling the circumstances that gave rise to its formulation:
Government briefs for Supreme Court cases are prepared either by the
agency concerned (the Securities and Exchange Commission, the Interstate
Commerce Commission, and so forth) or by the appropriate division of the
Department of Justice—Tax, Criminal, Civil, Antitrust, Lands, and so forth.
Those briefs are then reviewed by an attorney on the staff of the Solicitor
General, who makes whatever revisions he deems necessary before
submitting them to the Solicitor General for final approval. The revisions
are often extensive, and on occasion amount to a complete rewriting. The
revising process is frequently a painful one, either to the rough-drafter,
whose beloved brain children are ruthlessly carved up and irreparably
maimed, or to the reviewing lawyer, who is struggling under pressure to
supply the analysis or the research or the literary quality that should have
been contributed earlier, or to both. I have been in both positions, so I think
I can discuss the business dispassionately.
At the reviewing level, my normal inclination was to pass an adequate
job, add a few commas or a citation or two, and then let it go on—not
because I was more tolerant of other people's sensibilities, but essentially I
suppose because I was more indolent. Yet, every once in a while, I would
get a draft brief over my desk that I couldn't pass, that I simply had to
rewrite despite my basic disinclination to do so—because it wasn't
adequate, i.e., it didn't convince me when I read it through but instead left
me with a host of bothersome and unanswered questions. So, with (at least)
a sigh, I would dig in, start reading cases, think about the problem,
reanalyze it, and, by the time a week or so had elapsed, the brief would
have been rewritten and recast.
If it left me, who was sympathetically inclined, unconvinced and curious,
you can imagine how a judge lacking such an inclination would have
reacted to it. A brief just hasn't done its job when it leaves that kind of
impression.
Analytically, here are some of the elements that contribute to such a
brief's unsatisfactory character:
(a) Inadequate analysis—problem not thought through.
(b) Discussion of a tangential question, as a main point, which was not
really reached on the record.
(c) Extensive discussion of a prior decision, urging that it not be
extended, without fully stating its facts or holding.
 The last is what I have in mind when I speak of unsatisfied curiosity: in
order to understand the discussion, it is necessary to get the volume down
from the shelf and read the case. But it shouldn't be; a brief should give the
reader enough of any case it discusses at length to enable him to know what
that case holds and why it is either applicable or inapplicable, without
having to look it up in the library. I don't mean for a moment that a judge
can escape reading the case when he sits down to write the opinion, but I do
insist that he shouldn't have to do so when he first reads the party's brief.
Any tangential thoughts that a reasonably learned lawyer may have as he
reads a particular brief should likewise be satisfactorily answered, in the
brief, as he reads along—why, for instance, the case isn't governed by
Schmaltz v. Commissioner, just recently decided, or why it isn't affected by
the statute passed last year, or why the claim in question isn't barred by
limitations. The brief-writer must be sufficiently aware of all such potential
questions, not only to be able to answer them, but also to make sure that
they are answered in the brief he is writing.
This is particularly true when he writes a brief for an appellee or a
respondent. When judges read the briefs, whether before or after argument,
it may be assumed that they will follow the logical course (compare Section
111, infra) of reading the appellant's or petitioner's brief first. If, then,
appellant or petitioner makes what at first blush appears to be a strong,
persuasive, and controlling point, and the brief on the other side was written
on the hopeful but wholly mistaken assumption that silence is somehow as
effective as on occasion it may be dignified (compare some of the examples
noted in Section 35 (d), supra), then the latter brief will not carry conviction
to the judicial reader.
It is highly desirable to ignore any personalities that may have crept into
the brief filed first (compare Section 83, infra); name-calling is a contest no
one can win. It is well not to pay too much attention to trifles or to
arguments that verge on quibbling. Those can usually be disposed of in a
sentence or two at the most. But when the other side makes a real, thumping
argument, or digs up a citation that really undercuts the judgment you are
engaged in defending, you must reply. If you do not, your brief will
generate doubts in the judges' minds, doubts that a little reflection will only
serve to intensify. On an appeal as in a trial, even a poor answer is
frequently better than a studied refusal to answer at all.216
 Section 39. The final accolade.
—The real test of whether a brief has been effective—the ordeal by fire
—is whether it wins the appeal. True, there are many good briefs that don't
win cases, and assuredly there are poor ones (including some exceptionally
poor ones) that do. But a brief that didn't win, however close to perfection it
may have come, just wasn't an effective brief; since it didn't persuade the
court, it lapses into the realm of "fine try" and "well played." The lawyer
needn't be ashamed of it, but the client lost the case, and fees are normally
paid with an eye to the final result. The pat story in this connection
concerns the Northern gambler who cleaned out all the local talent in a little
Southern town, after which the home town boys gathered around in a
somewhat menacing manner and insisted that he tell them whether in his
opinion Grant or Lee was the better general. The slick Yankee thoughtfully
considered the question, gave even more thoughtful consideration to the
group around him, and then answered, "Well, gentlemen—they paid off on
Grant." So here: clients don't pay off on good losing briefs.
216 In the first court-martial-of-dependents cases (Kinsella v. Krueger,
351 U. S. 470, withdrawn on rehearing, Reid v. Covert, 354 U. S. 1), the
Government relied heavily on a decision of the United States Court of
Military Appeals (United States v. Burney, 6 USCMA 776, 799, 21 CMR
98, 121), where that tribunal had said, "Conceding we are not in a state
of declared war, our foreign armies may be likened to the Army garrisons
in the far west during the days of the Indian Wars."
Counsel for the civilian women in reply cited opinions of The Judge
Advocate General of the Army from Indian-fighting days, to the effect
that a post-trader—successor to the sutler and predecessor of the post
exchange—• was not amenable to trial by court-martial unless employed
on the actual theater of an Indian War (Dig. Op. JAG, 1901, p. 563; id.,
1895, pp. 599-600; id. 1880, p. 384), and hence argued that the analogy
put forward by the Court of Military Appeals was actually evidence
against the asserted jurisdiction.
In some 220 printed pages of briefs subsequently filed by the
Government in those cases, it never once made reference to, much less
discussed, those published rulings.
 It may be ventured that this silent treatment, far from detracting from
the authority of those rulings, substantially emphasized their importance.
At any rate, when the Court ultimately decided that civilian employees
were not amenable to military jurisdiction in time of peace, it relied on
the posttrader opinions. McElroy v. Guagliardo, 361 U. S. 281, 285, note
4. See also Section 70, infra, at pp. 220-222.
However, when the winning brief is inadequate, and forces the court to
do a lot of independent research, and the opinion relies on cases not
discussed or even cited by counsel and flatly rejects the proposition
advanced by the prevailing side, then that wasn't a very effective brief
either; it didn't persuade.
So I conclude that a really effective brief is one that (a) wins your case,
and (b) persuades the court to follow your analysis of the problem and to
rely on your authorities.
It may reflect an inadequate or erroneous set of values, but I never get the
same pleasure out of winning a case when the court goes off on a tack of its
own as when it follows the analysis I have labored over and set out in the
brief. And I must confess to feeling the ultimate in forensic satisfaction
when the court adopts an analogy that I invoked 217 or incorporates into its
opinion one of my own pet phrases.218 Those are the trifles that, rightly or
wrongly, I regard as the final accolade for the brief-writer.
217 "The analogy suggested by counsel for the appellant seems
apposite: namely, that a defendant who commits a crime in Canada,
escapes to the United States, and then returns to Canada; he cannot
defend on the ground that between the offense and the trial he was
beyond the jurisdiction of the Canadian court." United States v.
Malanaphy, 168 F. 2d 503, 507 (C. A. 2), reversed sub. nom. United
States v. Cooke, 336 U. S. 210.
(b) "The Government makes the reasonable contention, and we so
hold, that the district into which the accused is first taken under custody
and landed is the district into which the accused is 'first brought' within
the meaning of § 41 of the Judicial Code [now 18 U.S.C. § 3238]; and
this was the district of Massachusetts in the case at bar." Chandler v.
United States, 171 F. 2d 921, 933 (C.A. 1), certiorari denied, 336 U. S.
918.
 (c) "Is a dependent wife in Hawaii so intimately a part of the Air Force
there so as to be subject to trial by court-martial? Her relationship is just
as close—and just as distant—as appellee's was to the Air Force while in
England, or, for that matter, precisely the same as the relationship to the
armed forces of any dependent wife on any military, naval, or air
installation within the United States." Brief for the Appellee, Reid v.
Covert, pp. 66-67.
"The wives of servicemen are no more members of the 'land and naval
Forces' when living at a military post in England or Japan than when
living at a base in this country or in Hawaii or Alaska." Reid v. Covert,
354 U. S. 1, 20.
2i8 (a) "Then came Wolf v. Colorado, 338 U. S. 25, with its holding
that the substance of the Fourth Amendment was a part of the Due
Process of Law guaranteed by the Fourteenth Amendment against
invasion by State action. At this point, the doctrinal underpinning of the
State seizure aspect of Weeks disappeared, as indeed Judge Hastie
pointed out in Hanna v. United States, 260 F. 2d 723 (D. C. Cir.), supra,
p. 46, the case in which the District of Columbia Circuit overruled its
earlier espousal of the 'silver platter' doctrine in Shelton v. United States,
169 F. 2d 665 (D. C. Cir.), certiorari denied, 335 U. S. 834. Cessante
ratione legis, cessat ipsa lex; cf. Funk v. United States, 290 U. S. 371,
381-385; Criminal Rule 26." Brief for the Petitioners in Elkins v. United
States, p. 52.
"The foundation upon which the admissibility of state-seized evidence
in a federal trial originally rested—that unreasonable state searches did
not violate the Federal Constitution—thus disappeared in 1949. This
removal of the doctrinal underpinning for the admissibility rule has
apparently escaped the attention of most of the federal courts, which
have continued to approve the admission of evidence illegally seized by
state officers without so much as even discussing the impact of Wolf."
Elkins v. United States, 364 U. S. 206, 213-214.
"The Court finds such a significant development, destroying in its
view the 'foundations,' the 'doctrinal underpinning' of the express and
authoritative limitation of the Weeks exclusionary rule to cases of federal
violations, in what was said in 1949 in Wolf v. Colorado, 338 U. S. 25,
27-28, * * *" Frankfurter, Clark, Harlan, and Whittaker, JJ., dissenting,
364 U. S. at 237.
(b) "Congress understood that it was writing finis to a long chapter in
the Nation's history, and that conditions had entirely changed from the
days when truly imperial grants had been deemed necessary to induce
entrepreneurs to build the lines of steel without which the West could not
have been opened to settlement. Now it was time to close the books, to
balance the accounts, to end the further disposal of public lands in aid of
construction to which the United States was obligated." Brief for the
Petitioners in Krug v. Santa Fe P. R. Co., pp. 37-38.
"We think Congress wrote finis to all these claims for all railroads
which accepted the Act by executing releases." Krug v. Santa Fe P. R.
Co., 329 U.S. 591,598.
(c) "The necessary consequence would be that the writ of habeas
corpus would thereby be perverted into what is simply a delayed motion
for a new trial, available long out of time, which will forever keep open
the prospect that on some later and, it may be, brighter day, the record of
trial can be once more reviewed in a more favorable legal climate, and
the defendant released from custody for what is then shown to be an
error of law on the part of the trial judge." Brief for the Petitioner in
Alexander v. U. S. ex rel. Kulick, p. 27.
"If in such circumstances, habeas corpus could be used to correct the
error, the writ would become a delayed motion for a new trial, renewed
from time to time as the legal climate changed." Sunal v. Large (and
Alexander v. U. S. ex rel. Kulick), 332 U. S. 174, 182.
(d) "If the officers here had been searching for an automobile, stolen
and transported in violation of the National Motor Vehicle Theft Act, 18
U.S.C. 408, it would obviously have been unreasonable for them to have
searched defendant's bureau drawers. The same must be said of a search
for an unregistered still, possessed in violation of 26 U.S.C. 2810 (a)."
Brief for the United States in Harris v. United States, p. 77.
"The same meticulous investigation which would be appropriate in a
search for two small cancelled checks could not be considered reasonable
where agents are seeking a stolen automobile or an illegal still." Harris v.
United States, 331 U. S. 145, 152.
(e) "The traditional view regarded the court-martial, not as a species of
legislative court, but as 'a purely executive agency designed for military
uses,' which is 'called into existence by a military order,' such order being
'a direction to certain officers named to assemble at a certain time and
place and form a court for the trial of a person or persons specifically or
in general terms indicated * * * *.' " [Citing Winthrop, Military Law if
Precedents (2d ed. 1896) *54-55, *229; Runkle v. United States, 19 C.
Cls. 396, 409, reversed on other grounds, 122 U. S. 543; Manual for
Courts-Martial, U. S. 1951, 36&.] * * * A court-martial is an ad hoc
tribunal created by a military order * * *." Supplemental Brief on
Rehearing on Behalf of Appellee and Respondent in Reid v. Covert, pp.
82-83.
"Courts-martial are typically ad hoc bodies appointed by a military
officer from among his subordinates. * * * In essence, these tribunals are
simply executive tribunals whose personnel are in the executive chain of
command." Reid v. Covert, 354 U. S. 1, 36.
 CHAPTER IV

SUGGESTIONS FOR WRITING AND

RESEARCH

Section 40. Introductory.

—This chapter will include a few suggestions to facilitate the process of
writing an appellate brief. I have found them helpful in my own practice—
after learning each the hard way. I pass them on here, not with any thought
that what follows is either the "approved solution" or the last word on the
subject, but solely with the view that what I, as one lawyer, have found
helpful over the years, may similarly be of assistance to other lawyers.

Section 41. The basic precepts.

—The principal suggestions under the present heading can be very
simply stated:
(a) Write the Statement of Facts before you write the Argument.
(b) Finish your analytical thinking and complete your basic research
before you start to write the Argument.
(c) Write the Argument consecutively.
(d) Write the Summary of Argument last of all.
(e) Check (or, preferably, have someone else check) every citation and
record reference.

Section 42. Write the Statement of Facts first.

—The importance of the Statement of Facts (compare Section 23, supra)
demands that this portion of the brief be written first. At this juncture it will
be well for the reader to reexamine the account of Mr. Justice Brandeis'
method, set forth at page 45.
 A lot of lawyers don't do it that way, preferring to toss in a casual or
cursory Statement of Facts after they have labored long and lovingly on the
intricate learning of their legal argument. I used to do it that way myself on
occasion—-when I was new at the game. But, for reasons that would simply
repeat what is set out at length in Sections 23 to 28, above, I don't do it that
way any more: I invariably write the Statement of Facts first, regardless of
the nature of the brief, because experience over the years has convinced me
that this is the order that results in the most effective product.
It results in a more effective product for two reasons. First (see Sections
23-27, above), the facts are frequently, perhaps usually, the most important
element in every case, and so they deserve and should receive primary
attention. Second, once your Statement of Facts is completed, it will help
you in the writing of your argument; new legal arguments are bound to
suggest themselves to you once your Statement of Facts has been properly
done.
Sometimes a Statement of Facts can be very short, reflecting the thinness
of the record. On other occasions, when the case has a record running to
thousands of printed pages, the Statement of Facts is necessarily more
voluminous. But it does not follow that the length of the Statement of Facts
should increase in direct proportion to the length of the record—although it
is true that the longer the record, the longer the labors of the really able
lawyer. The remark, variously attributed to Cicero and to Pascal—"If I had
had more time, I would have written you a shorter letter"— is apposite here
in full measure.

Section 43. How to go about writing the Statement of Facts.

—The painful but inescapable preliminary to writing the Statement of Facts
is reading the record; there just isn't any short cut or labor-saving gadget to
spare the man who actually pushes the pen. If you are unwilling or simply
not in a position to take the time to read the record, you must get someone
else to write the Statement of Facts.
Assuming that you are at the rough-drafting level of the working staff
(i.e., junior partner or law clerk or GS-11 in the Government service), the
best way to start is to take a deep breath and simply plunge in, taking more
or less complete notes as you go along. Ideally, if time permits, you should
make a complete index of the testimony and of the exhibits, preferably with
a carbon copy. In well-regulated law offices, this is done by the young men
during the trial, usually at night and over week-ends, while the seniors in
charge of the litigation are regaining their strength and, generally, keeping
their minds open for the larger aspects of the controversy. At any rate,
before the appellate brief is about to be written, someone will have to make
a workable guide to the transcript of testimony.
One copy is the consecutive index, the second becomes the cross-index.
The latter is thereafter marked to show division into topics, after which the
index as to each topic is reassembled, either by pasting or copying; this
enables you to compress all the testimony on a particular topic into
convenient compass without having to run through the entire index anew
each time that you pass to a new topic. If the index is not too bulky, you can
get the same effect with marginal notes in colored inks or pencils for each
particular topic—i.e., red for the merger negotiations, green for the threat of
patent litigation, blue for the accounting system, and so on.
Under ideal conditions, with a maximum of clerical help, the easiest and
the best way is to dictate the index directly to a stenographer as you go
along. It should look something like this:
OATMEAL—DIRECT
674-675—Is V.P. of Schmaltz Mfg. Co.; has been for 16 years; knows D
intimately, socially as well as in business.
676 —Was present at June 5 directors' meeting; D made the bond issue
proposal; unanimously approved.
677-679—Also present at July 10 directors' meeting; D made report re
progress of loan; no one objected.
680-683—Also present at August 11 directors' meeting; D made further
progress report; details re that report.
683-687—Long colloquy re admissibility of draft minutes; admitted as
DX 43.
With someone to take your dictation it isn't nearly so difficult as pushing
a pen late at night. When your dictation has been typed, mark up the carbon
by topics in the margin, and let the stenographer collect in a single sequence
all the testimony under the particular topic, always indicating whose
testimony is referred to. E.g.:
H—JUNE 5 DIRECTORS' MEETING
OATMEAL—DIRECT
676 —Was present at June 5 directors' meeting; D made the bond issue
proposal; unanimously approved.
OATMEAL—CROSS
732-733—Doesn't recall extent of discussion of bond issue proposal at
June 5 meeting; only certain there was no objection.
734 —-Positive that was the first time D mentioned it.
735-736—Never had had earlier talks with him concerning it, either
privately or in the office.
737 —PI X 73 doesn't change recollection re that.
738-740—Long colloquy re PI X 73.
741 —Adheres to statement, bond issue first broached at June 5 dir.
meeting. OATMEAL—REDIRECT
789 —PI X 73 referred to Schmaltz Mfg. Co.'s subsidiary. OVERSHOE
—DIRECT
973-974—Remembers June 5 directors' meeting vividly; was his wedding
anniversary and Mrs. O. was put out over his attending it.
974 —D made some sort of bond issue suggestion; sounded O.K.
and D was financial man.
975 —Possibly D mentioned it before; can't recall. OVERSHOE—
CROSS
1001 —Never saw PI X 73 before coming to court just now.
And so on, for every witness whose testimony bears on this particular
topic. When you are all through, you have a workable key to the record,
which will instantly locate for you what everyone said on every point; and
you will need to refer to the actual record only for exact quotations and,
where your index covers two or more pages (i.e., 973-974), for the precise
page reference.
As I say, this is the ideal; with less, or less efficient, stenographic help,
you will have to curtail your indexing. And of course the time factor cannot
be ignored. But it may be stated with considerable assurance that the better
the index, the less the time that is later used up in hunting for an elusive but
important bit of testimony not reflected therein. Time spent in constructing
an effective index to the record is time well invested.1

Section 44. Steps after completing the index of testimony.

— Having completed your index of the testimony, you will have a fairly
good idea of the scope and extent of the record in your case and of the
major topics it involves. The next step, then, is to block out the order in
which you will set forth those topics in the Statement of Facts. Having done
that, you are ready to write: your outline is your guide, your topical index
gives you the key to the materials, and you can fill in the record references
as you go along. You will frequently need to refer to the actual transcript,
either to get the exact page reference whenever the index notes refer to
several consecutive pages lumped together, or whenever you deem it
helpful to quote exactly from a witness or a document. But, given outline
and index, you have control of your materials, no matter how bulky they
are, and you should therefore be able to make very satisfactory progress.
1For suggestions on the preparation of a more elaborate index in
protracted cases, see Current Indexing of the Record, 13 F.R.D. 85.
It is well to pause at this point to stress the absolute necessity for having
record references to every portion of the Statement of Facts. That need
simply cannot be overemphasized. For one thing, a Statement of Facts
buttressed by record references carries a reassuring conviction to the reader.
For another, when the reader (i.e., specifically, the judge who is going to
pass on your case) turns to the record, his curiosity whetted, and finds that
what you have said is true, he gains confidence in the accuracy and veracity
of what you have written.
Contrariwise, if long passages of assertive prose are devoid of record
references, the sophisticated judge is at once beset by doubts. "Where does
this fellow get this stuff from?" "Is this just a free-wheeling opening to a
jury, or are we here on appeal?" Doubts are immediately generated by any
Statement of Facts not supported by page references to the record. And if a
record reference duly included turns out not to support the text—look out!
Falsus in uno, falsus in omnibus is a standard applied not only to witnesses
by lawyers and juries, it is a standard applied to lawyers by appellate
judges.
The rules of Federal appellate courts vary as to the degree of specificity
in which their requirements for referring to the pages of the record or of the
joint appendix are couched. But the admonitions just discussed are
applicable to all briefs, even where the rules of the particular court are
completely silent on the point.
To resume: Once a fair first draft is ready, you will want to read it over
for verbal revisions. When those are made, put your corrected Statement of
Facts to one side—on ice, as it were.
(Some folks have the verbal fluency, as well as a sufficient number of
competent stenographers, to be able to dictate a brief. I just can't; I have to
push the pen, and as each portion is finished and revised I send it off for
typing in draft—triple-spaced, in order to leave plenty of room for later
corrections and additions.)
This seems as good a place as any to mention the desirability of referring
to the parties by some designation that will make for understanding and
clarity. To call the parties "appellant" and "appellee" throughout in a civil
appellate brief is bound to confuse; mistaken references are inevitable; and
the designations simply reflect the happenstance of the outcome below and
do not characterize the parties' positions in the context of the controversy on
appeal.
The object should be to use a characterization conducive to
understanding. In a negligence case, it is perfectly adequate to refer to the
parties as they were below, as "plaintiff" and "defendant," because the
plaintiff is always the injured party. But in a domestic relations controversy
—a common example in the District of Columbia Circuit—the terms
"plaintiff" and "defendant" only show who brought suit, which is not very
illuminating. Hence, in that situation the parties should be referred to as
"husband" and "wife." ls
 Use shorthand terms that assist understanding: e.g., "the corporation,"
"the minority stockholders," "the Commission." Similarly, where long
corporate names are involved, use a compressed shorthand designation, just
as courts do in their opinions; e.g., "Allied Chemical and Reagent Co., Inc.,
hereinafter called simply 'Allied.'"
There is one apparent exception to the basic precept: in a criminal appeal
involving only a single defendant, you are perfectly safe in calling the
convicted person "appellant" or "petitioner." In that instance, the docket
designation cannot possibly confuse. But where there are several appellants
or petitioners, the rule just discussed should once more be followed.
A very simple test will solve your problem. Just ask yourself these
questions: Will the terms in which your brief refers to the parties enlighten
the judge who reads it? Or will your designations simply confuse him?
laAfter the foregoing was written and was in process of being published,
the Fourth Circuit adopted Rule 10 (9), as follows:
"9. Counsel will be expected, in their briefs and oral arguments, to
keep at a minimum references to the parties by their formal designation
appearing in the caption of the case, as appellants or appellees, or
petitioners or respondents, as the case may be. Ordinarily, it is preferable
to identify them as plaintiff or defendant, as in the proceedings below. It
will avoid confusion in the argument and study of the case, and the
necessity for back-references, if the parties are not repeatedly called
'petitioner,' 'respondent,' 'appellant,' 'libellant,' 'cross-appellee,' etc. It
promotes clarity to use names or descriptive terms such as 'the bus,' 'the
employee,' 'the injured person,' 'the driver,' 'the pedestrian,' 'the taxpayer,'
'the ship,' 'the stevedore,' etc."
Section 45. Final revision of the Statement of Facts.
—Later, when the rest of the brief is also finished, it is a very good idea
to reread the record, taking notes then of only those items of testimony you
think you missed earlier. Insert those additional references, or those
additional topics, in the revised draft Statement of Facts that you had earlier
put to one side.
There are bound to be some you have missed, and you will regret every
last one if you permit the brief to go into final print before you catch them.
There are bound to be others you may have thought you missed that turn up,
duly included in your draft. To the extent that such references were included
after all, it shows that your system is working—fine! But when you get to
the final showdown, it is those you have missed that annoy and cause pain,
and it is for this reason that the rereading should not be omitted.
So much for the working level, for the pencil-pusher echelon. Now
suppose that you are somewhat higher in the hierarchy, that you are the
senior partner who will argue the case, or the Government lawyer who will
actually wear the striped pants and emit the sound effects. In that event you
should still read the record before the brief goes into final and irrevocable
print. (No lawyer, and I will say it dogmatically, here and now and many
times again, should ever risk his reputation by arguing a case on a record he
has not read. Sometimes no ill-fortune happens, just as sometimes a car
going uphill can pass another car on a blind curve without accident. I would
consider both instances parallel risks. And therefore, since you should read
the record anyway, the time for that reading is when the process can still
influence the brief.)
At the nonwriting level, it is not necessary to take very copious notes, but
you should note the bits of testimony that, as you read, seem most
significant. If the brief has been well written by an able lawyer, most of
those items will have been included. But there will always be a few whose
significance the man actually arguing the case will more keenly appreciate,
and it is the inclusion of those select and significant few that often makes
the difference between a good brief and a very good one. So, I repeat,
reading the record at this point, when the results of your own analysis can
still be added, is time well spent.
As the late Mr. William D. Mitchell, sometime Solicitor General and
Attorney General, wrote:
A busy lawyer may properly rely on assistants to furnish him with
material or even with drafts of a proposed brief, but his producing the final
draft is well worth while. In this way, since his brief and oral argument
follow the same lines and logical sequence, he is aided in oral argument.
And when the court comes to prepare its opinion they are helped by a brief
which has conformed closely to such argument.2
 One of the most difficult—and unsatisfactory—situations in which an
advocate can find himself is to be retained or assigned to argue a case where
the brief is already filed. He can then hardly abandon points whose value he
doubts, nor can he effectively add new contentions that he regards as
substantially stronger. Even if the lawyer who is to argue the case was for
one reason or another unable to follow the wise counsel that he should
actually have written the final form of his own brief, at the very least he
should have been able to make his own decisions as to the points that it
should have included.
Finally—and now I am back at the working level—be sure that every
record reference and every quotation you have included in the Statement of
Facts has been meticulously checked; see Section 66, below.

Section 46. Think before you write the argument.

—The basic admonition to the lawyer who is sitting down to write the
Argument is simply this: never start to write until you have thought the case
through and have completed your basic research. That doesn't mean every
citation or every footnote, but it does include a reading, and, whenever
required, a rereading, of all the important cases—because the basic
authorities are always full of suggestive leads for further development. And
be certain that you have really thought your argument through and outlined
it, before you put pen to paper (or lips to dictograph). If it doesn't outline
properly, it hasn't been properly analyzed—another point on which one may
safely be dogmatic. And even with an apparently satisfactory outline, a
brief that hasn't been properly thought through or researched just doesn't
turn out well. Frequently, of course, your writing is done under the pressure
of deadlines; you must begin, even though you feel unready. But in that
event, your original indirection and unreadiness are almost certain to be
reflected in your final work.
The question will naturally arise, how does one know when "the case has
been thought through" or when "the basic research has been completed"?
The only answer is, you come to sense it. There isn't any gauge or
instrument, it is just a feeling. How do you know when you have had
enough to eat? It's the same sort of thing, an instinctive reaction that
develops after a time. You will recognize it, never fear, and when you do,
then you can safely start writing—but not before!
2 Review of the first version of this work, 64 Harv. L. Rev. at 351-352.
The foregoing is not to be misunderstood as advice to put the proposed
brief to one side until the imminent approach of the deadline galvanizes you
into belated action. The tendency to postpone and to procrastinate is a very
human one; "the relative ease with which men are persuaded to postpone
troublesome decisions, all make inertia one of the most decisive powers in
determining the course of our affairs * * *." 3 The point here is that, as Mr.
Justice Holmes once wrote, "It is impact not dead pull that drives a pile." 4
Concentrate on your problem, turn it over in your mind, think about it in tub
or shower, try out your hypotheses on associates, live with the case in every
spare waking moment—but don't start to write until the sequence and
direction of your points have fallen clearly into place in your mind.

Section 47. Never let the other side write your brief.
—Always write your brief in such a way as to set out and make the most
of your affirmative case. This admonition is perhaps most to be borne in
mind when you are appellee or respondent; don't content yourself, in that
situation, with a point-by-point reply to appellant or petitioner. Accentuate
the affirmative features of your case, don't let the other side write your brief
or even shape it.
I can illustrate this approach first with an anecdote and then with actual
specific instances. The anecdote concerns one of the ablest of Solicitors
General, who was asking when the Government's brief in Oatmeal v. United
States would be ready. He was told that it had not yet been started since the
petitioner's brief had not yet come in. "What's the matter?" he asked.
"Haven't we got a case?"
So, don't follow the appellant's outline of points, even when you must
reply to all of them. Put your own strongest point first, because what may
be strongest for him may not be so for you.
3Jackson, J., concurring in Duckworth v. Arkansas, 314 U. S. 390,
397, 400.
 4 1 Holmes-Laski Letters (Howe ed. 1953) 684.
Here are some examples illustrating applications of this principle.
(a) One of the most instructive instances for the advocate is found in two
of the recent cases that involved the constitutionality of military trials of
servicemen's dependents.5 Both sides arranged their points so as to stress
those they considered the strongest, without regard to the opposition's
arrangement; and the same principle was followed after the grant of
rehearing foreshadowed at least a shift of emphasis in the direction of the
Court's thinking.
Here were the major headings in the Government's brief on the first
hearing of Reid v. Covert:
II. 6 Article 2(11) of the Uniform Code of Military Justice is a valid
exercise of the power of Congress to make rules for the government and
regulation of the land and naval forces, the war power, and the power to
make all laws necessary and proper for carrying into execution the
sovereign authority of the United States to maintain relations with other
sovereignties.
III. Jurisdiction over appellee under Article 2(11) was not lost by reason
of her transportation to the United States, her imprisonment in the Federal
Reformatory for Women, or the reversal of her conviction by the Court of
Military Appeals.
Otherwise stated, the Government concentrated on sustaining the
constitutionality of the assailed statute. Counsel for the dependent woman
urged first the nonconstitutional ground, sufficient for her purposes, that
jurisdiction if it ever existed had been lost, and then joined issue on the
constitutional argument, as follows:
II. Assuming that appellee could constitutionally have been tried by
court-martial in England as a person "accompanying the armed forces of the
United States without the continental limits of the United States," she
ceased to be subject to the Uniform Code of Military Justice after the Air
Force returned her to the United States and placed her in civilian custody,
and consequently she could not thereafter be retried by court-martial.
 5Kinsellav. Krueger, 351 U. S. 470, and Reid v. Covert, 351 U. S. 487;
on rehearing, Reid v. Covert, 354 U. S. 1.
6 In Reid v. Covert, counsel for Mrs. Covert had moved to dismiss the
appeal, on the ground that the appellant Reid, Superintendent of the
District of Columbia Jail, was an officer of the District of Columbia and
not of the United States, and so was not entitled under 28 U.S.C. § 1252
to take a direct appeal from a district court to the Supreme Court. The
Court postponed the question of jurisdiction to the hearing on the merits,
350 U. S. 985. Pursuant to Supreme Court Rule 16(4), Point I in both
briefs dealt with the jurisdiction of the Supreme Court to entertain the
appeal. That jurisdiction was sustained (Reid v. Covert, 351 U. S. 487,
489-490), and although the earlier opinion was ultimately withdrawn, see
354 U. S. 1, the question of the Supreme Court's jurisdiction of the direct
appeal was not thereafter argued or questioned, either by counsel or by
any member of the Court.
III. Article 2 (11) of the Uniform Code of Military Justice is
unconstitutional to the extent that it purports to authorize the trial of
civilians by court-martial in time of peace.
IV. The treaty power is completely irrelevant in the present case.
V. To the extent that appellant's invocation of the Necessary and Proper
Clause brings the matter into the realm of judgment, examination of the
realities of trial by court-martial demonstrates that the principle of "the least
possible power adequate to the end proposed" is one preeminently
applicable to the scope of military jurisdiction.
The first opinions sustained the jurisdiction.7 After rehearings were
granted, however, it was plain to all concerned that a regrouping, so to
speak, of the parties' previous arguments was in order, particularly in view
of the questions on which the order granting rehearing had invited
discussion.8 The Government then marshaled its contentions as follows:
I. Court-martial jurisdiction over dependents and civilian employees
accompanying the armed forces overseas is a practical necessity both as a
matter of international relations and to accomplish the military mission.
7 Supra note 5.
 8 352 U. S. 901: "On reargument counsel are invited to include among
the issues to be discussed by them the following matters:
"1. The specific practical necessities in the government and regulation
of the land and naval forces which justify court-martial jurisdiction over
civilian dependents overseas; the practical alternatives to the exercise of
jurisdiction by court-martial.
"2. The historical evidence, so far as such evidence is available and
relevant, bearing on the scope of court-martial jurisdiction authorized
under Art. I, § 8, cl. 14, and the Necessary and Proper Clause, and
bearing on the relations of Article III and the Fifth and Sixth
Amendments in interpreting those clauses. In particular, the question
whether such historical evidence points to the conclusion that the Art. I,
§ 8, cl. 14, power was thought to have a fixed and rigid content or rather
that this power, as modified by the Necessary and Proper Clause, was
considered a broad grant susceptible of expansion under changing
circumstances.
"3. The relevance, for purposes of court-martial jurisdiction over
civilians overseas in time of peace, of any distinctions between civilians
employed by the armed forces and civilian dependents.
"4. The relevance, for purposes of court-martial jurisdiction over
civilian dependents overseas in time of peace, of any distinctions
between major crimes and petty offenses."
II. No adequate alternatives to the exercise of jurisdiction by court-
martial are available.
III. Article I, section 8, clause 14, of the Constitution is properly read in
conjunction with the necessary and proper clause to constitute a broad grant
susceptible of expansion under changing circumstances.
IV. The constitutional distinction between major crimes and petty
offenses is not a relevant distinction for purposes of court-martial
jurisdiction over civilians in foreign territory.
Counsel for the civilian women felt that, whatever might be the force of
the Government's invocation of "practical necessities," i.e., its arguments on
the facts, its contentions on the law were far weaker. Accordingly,
following the precept of "never let the other side write your brief," the
major points made on behalf of the civilian dependents were framed as
follows:
I. The consent of England and Japan to the exercise of American military
jurisdiction within their territories in respect of offenses committed therein
did not and could not invest American courts-martial with jurisdiction to try
particular persons.9
II. Nothing in the Constitution of the United States authorizes the trial of
civilians by court-martial in time of peace and not in occupied territory.
III. The result reached last June is completely irreconcilable with Toth v.
Quarles, 350 U. S. 11.
IV. As long as the object sought to be attained is punishment of crime
rather than military control of civilians, practical alternatives are
available.10
While, as the opinions on rehearing show, the only ground on which a
majority of the Court concurred was that civilian dependents could not be
tried by court-martial for capital offenses,11 thus leaving to later
determination the scope—and eventual denial— of military jurisdiction
over non-capital offenses and over civilian employees,12 the outcome fully
justified the decision on behalf of the women involved to give primacy to
the legal arguments, and hence not to follow the order of points put forward
by the Government.
9The reasons for placing this question first are explained at pp. 84-87,
supra.
10Point V, applicable only to Mrs. Covert, reargued the loss-of-
jurisdiction contention on the basis of military rulings and the terms of
Art. 2 (7) , UCMJ, now 10 U.S.C. § 802 (7).
11 Reid v. Covert, 354 U. S. I.
12Kinsella v. Singleton, 361 U. S. 234 (no military jurisdiction over
dependents committing non-capital offenses); Grisham v. Hagan, 361 U.
S. 278 (same, over employees committing capital offenses); McElroy v.
 Guagliardo, 361 U. S. 281 (same, over employees committing non-
capital offenses).
(b) Similarly, in the Douglas Chandler radio broadcasting treason case,13
the appellant opened his written argument with an attack on the
jurisdictional basis of the prosecution. Here was his order of points:
I. The Court should not have exercised jurisdiction over the person of the
defendant.
II. The court lacked jurisdiction of the crime alleged, for
1. Congress has not by law directed the place of trial of crimes
committed within the territorial jurisdiction of a foreign government.
2. If Judicial Code, Section 41,14 is construed as applicable, the District
of Massachusetts was not that into which the defendant was first brought.
III. The indictment is duplicitous.
IV. Treason against the United States is not committed by adherence to
the enemy by one residing in enemy territory.
V. The overt acts alleged in the indictment are insufficient to establish the
offense of treason, for
1. They do not in themselves and in their setting manifest any criminal
intention.
2. They are manifestly merely preparatory parts of acts not treasonable
unless completed and not set forth in the indictment.
VI. The proof of the overt acts submitted to the jury was insufficient to
establish the offense of treason.
VII. The court erroneously admitted evidence upon the issue of the
defendant's intent to betray the United States and erroneously instructed the
jury upon that issue.
VIII. The court erroneously instructed the jury with respect to the weight
to be given the defendant's motives in determining whether he had a
specific intent to betray.
I am not suggesting for a moment that this was not an effective
presentation for appellant's purpose, and certainly Chandler's defense, ably
conducted by appointed counsel,15 reflected the finest traditions of the
American bar. But the foregoing order of points did not center attention on
what the prosecution deemed to be the controlling legal questions.
Consequently, rather than answering Chandler's contentions seriatim, the
Government rearranged the points at issue in an entirely different order, and
concentrated on the core of the substantive offense:
13Chandler v. United States, 171 F. 2d 921 (C.A. 1), certiorari denied,
336 U. S. 918.
"Now 18 U.S.C. § 3238.
15 Messrs. Claude B. Cross and Edward C. Park of the Boston Bar.
I. The indictment charged and the evidence established the crime of
treason.
A. Broadcasting propaganda on behalf of an enemy is a treasonable act.
B. The overt acts were acts which gave the enemy aid and comfort.
C. All of the overt acts were supported by the testimony of two witnesses
within the meaning of the Constitution.
D. The judgment below must be sustained so long as there is a single
sufficient overt act.
E. Appellant's treasonable intent was not nullified by his belief that what
he did was in the interests of the United States.
F. The recordings were properly received in evidence on issue of
appellant's intent.
G. The indictment is not duplicitous.
II. Congress has made treason committed abroad an offense and
Congress had constitutional power to do so.
III. Appellant was lawfully apprehended and lawfully brought within the
jurisdiction of the district court.
IV. The District of Massachusetts was the proper forum for appellant's
trial.
 A. Congress has made specific provision for the triai of offenses against
the United States committed abroad.
B. The District of Massachusetts was the district into which appellant
was first brought.
Chandler's conviction was sustained. But the real proof of the pudding, so
far as the prosecution's order of points was concerned, was this: First, the
court had this to say concerning the arguments that did not go to the merits:
Counsel for appellant have not suggested any alternative procedure
which in their view properly could have been employed to bring Chandler
to trial; in fact, all their arguments involve the conclusion, which we deem
unacceptable, that there was no way in which a court of the United States
could obtain lawful jurisdiction over Chandler unless he should choose to
relinquish his asylum in Germany and voluntarily return to the United
States.16
16171 F. 2d at 936.
Second, the court dealt with the question of the proper district, which the
prosecution had relegated to the end of its brief, with the remark, "It would
indeed be unfortunate if we were compelled to hold, on such a highly
technical ground, that this elaborate trial has gone for naught." 17
The prosecution's order of points, therefore, was vindicated in the
result.18
(c) In other cases, it may not even be necessary to join issue with the
appellant or petitioner. If his strongest point, legally speaking, is not really
raised on the facts, you may safely reject his chosen battleground, and stand
on your own strong points. Below (see Section 83, pp. 254-258), there is set
forth part of a Brief in Opposition to a Petition for Certiorari where the
respondent rested on the facts and relegated to a footnote his reply to
petitioner's principal legal contention.
But such a course is only justified when there can be no doubt that your
opponent's point is without record support. You are never safe in dropping
to a footnote answers to substantial questions; such questions do not lend
themselves to cavalier sweepingunder-the-rug techniques (see Section 35
(d), at pp. 104-107, supra). And if you have a substantial answer to the
other side's contentions, it normally deserves something better than the
dilution that is bound to result from a misuse of footnotes (see Section 79
and Chapter XII, infra).
So, write your brief affirmatively. Put your own strong points forward.
Don't be content with simply a point-by-point denial of what the other side
has said, and don't go all out demolishing an issue that the other side vainly
hopes will seem to be in the case. Any time you simply follow such a
course, you are letting the opposition write your brief.

Section 48. Research; some general considerations.

—This chapter is emphatically not a rehash of the several excellent
works now in print on "How to Find the Law." It is written for the reader
who already knows the use of every bibliographical tool, and who, with the
aid of digests, encyclopedias, textbooks, sets of annotated cases, citators,
collections of judicial definitions, and miscellaneous indices, is able to chart
a workable path through the morass of current case law. It seeks rather to
assist in the evaluation of decisions and in the handling of noncase material,
the proper use of which is becoming increasingly significant in appellate
practice.
17171 F. 2d at 933.
18Counsel for the petitioner were gracious enough to say in their reply
brief, "* * * The arrangement of the points discussed, in what may be
thought the order of their importance, seems to us impressive and one
which we perhaps should have adopted."

Section 49. Evaluation of decided cases.

—Regardless of how closely the facts in a decided case may resemble
those in your case, you must always remember that decisions are not
fungible, and that turning up the famous bay horse case in a digest does not
necessarily solve the brief-writer's problem.
It is of course unnecessary to belabor the proposition that, while
decisions of higher courts govern litigation pending in lower courts, the
decisions of lower courts do not control cases above except to the extent
that their reasoning is persuasive. The difficulties arise out of the practical
qualifications to that indisputable general rule.
First, when can a Supreme Court decision safely be taken at less than its
face value by a Court of Appeals? One instance is the unusual situation
when the lower court feels that the cited decision is about to be overruled.19
Another, perhaps too little appreciated, is when there is no opinion in which
a majority of the justices sitting have joined; in that event, there is no
precedent for the future; "the lack of an agreement by a majority of the
Court on the principles of law involved prevents it from being an
authoritative determination for other cases." 20
A fuzzier situation by far is the recurring problem of when an earlier
decision is to be considered as being no longer law even when it has not
been specifically overruled. Sometimes, as in the recent case invalidating an
ordinance that enforced segregated transportation,21 a lower court is safe in
assuming that the earlier decision—there Plessy v. Ferguson 22—lacks
vitality. It is likewise safe to assume that many of the Supreme Court's
holdings from the 1920's and 1930's which, on grounds of due process, held
unconstitutional a host of regulatory statutes, are similarly no longer
authoritative.23 In recent years, too, we have seen that the broader
construction now given the Sherman Act has limited the force of Federal
Baseball Club v. National League?4, decided in 1922, to baseball alone;25
that decision no longer protects restraints of trade occurring in other
spectator sports or activities.26
19 See note 170, supra, p. 108.
20United States v. Pink, 315 U. S. 203, 216; Alaska v. Troy, 258 U. S.
101, 111; Hertz v. Woodman, 218 U. S. 205, 212-214. See also Supreme
Court NoClear-Majority Decisions: A Study in Stare Decisis, 24 U. of
Chi. L. Rev. 99.
21Gayle v. Browder, 352 U. S. 903, affirming 142 F. Supp. 707 (M.D.
Ala.).
22 163 U. S. 537.
In part, of course, the problem is to predict how far the Supreme Court
will hew to the line of stare decisis. But what is perhaps more troublesome
to the advocate in a court of appeals is the respect that the lower Federal
courts pay to Supreme Court dicta, respect that is certainly greater than that
accorded those expressions by the Supreme Court itself.
For instance, in the Hirshberg case,27 the question was whether a career
sailor who had reenlisted, after an interval of less than 24 hours after
discharge, could be tried by court-martial in the subsequent enlistment for
an offense committed in the earlier one. The Supreme Court, reversing the
Second Circuit, answered that question in the negative, basing its decision
entirely on statutory grounds. Believing therefore that no constitutional
question was involved, and with the Hirshberg case specifically before it,
Congress amended the law to provide that in such a situation the offender's
amenability to military jurisdiction would continue.28 When the new statute
was thereafter assailed, the District of Columbia Circuit upheld it in the
belief that no constitutional issue was involved.29 But on certiorari the
Supreme Court in Toth v. Quarles30 decided that the provision was
unconstitutional.
23See Lincoln Union v. Northwestern Co., 335 U. S. 525, 533-537,
542557; Daniel v. Family Ins. Co., 336 U. S. 220, 224-225; Williamson
v. Lee Optical Co., 348 U. S. 483, 488-489.
24 259 U. S. 200.
25 Toolson v. New York Yankees, 346 U. S. 356.
26United States v. Shubert, 348 U. S. 222 (theatrical productions);
United States v. International Boxing Club, 348 U. S. 236 (boxing);
Radovich v. National Football League, 352 U. S. 445 (football).
27 United States v. Cooke, 336 U. S. 210.
28 Art. 3 (a), Uniform Code of Military Justice, now 10 U.S.C. § 803
(a). For references to the Hirshberg case in the legislative history, see
H.R. Rep. No. 491, 81st Cong., 1st sess., pp. 5, 11; Sen. Rep. No. 486,
81st Cong., 1st sess., pp. 8; Uniform Code of Military Justice, Hearings
before the House Committee on Armed Services, on H.R. 2498, pp. 617,
800, 882-884.
29
Talbott v. United States, 215 F. 2d 22, 27 (D. C. Cir.). See also
Kronberg v. Hale, 180 F. 2d 128, 131 (C.A.9), certiorari denied, 339 U.
 S. 969 (Hirshberg held to be purely statutory).
30 350 U.S. 11.
Just half a century ago, Mr. Justice Holmes defined law as "a statement
of the circumstances in which the public force will be brought to bear upon
men through the courts." 31 But, for better or worse, law is not an exact
science. A lawyer cannot predict the future course of decision in even a
single court with either the assurance or the accuracy of the astronomer
forecasting the orbits of distant planets, as indeed hosts of defeated litigants,
licked lawyers, and reversed lower court judges have learned to their
discomfiture.
And this is why: when a single judge delivers an opinion on behalf of
many others, the give-and-take of the judicial process obscures a good
many unresolved differences. As Justice Holmes once wrote, in the middle
of a Term marked by some bitter dissents, "It is worth an effort and some
self-suppression to keep things smooth wherever one is called on to
cooperate with others." 32 Somewhat more pithy is the comment attributed
to another Justice whose concurrence in a particular decision was
questioned: "One can't dissent all the time." Therefore, a judicial
pronouncement that to the outsider, be he lawyer or judge, appears like a
monolithic facade, may in fact conceal some pretty rough, disjointed, and
non-uniform elements. It is, therefore, a mistake for the practicing lawyer to
decry concurring opinions. Those give a more accurate clue to the future
course of decision than does the tidied-up "Opinion of the Court" with its
compromises that so often gloss over important disagreements.
Second, when can lower court opinions usefully be cited to the Supreme
Court?
Where a good many lower Federal courts have decided the same question
of practice or procedure in essentially the same way, the resultant mass of
authority is bound to be persuasive. Thus, in Letter Minerals, Inc. v. United
States/3 the Supreme Court held that 28 U.S.C. § 2283, a provision with a
long history that restricts the power of Federal courts to stay proceedings in
State courts,34 was inapplicable to stays sought by the United States; the
opinion was buttressed by decisions of lower courts that had reached the
same result.35 On the other hand, where a constitutional issue is or is
thought to be involved, even the most unanimous array of opinions below
may fail to carry conviction. In Estep v. United States/6 as the dissent was at
pains to point out, the result reached was contrary to the prior opinions of
more than forty circuit judges.
31 American Banana Co. v. United Fruit Co., 213 U. S. 347, 356.
Mr. Justice Holmes had earlier set forth the same views in a well
known address, The Path of the Law (1897), in Collected Legal Papers,
167, 173: "The object of our study, then, is prediction, the prediction of
the incidence of the public force through the instrumentality of the
courts. * * * The prophecies of what the courts will do in fact, and
nothing more pretentious, are what I mean by the law."
321 Holmes-Laski Letters (Howe ed. 1953) 405 (Feb. 7, 1922). A
month earlier, Justice Holmes had commenced a dissent with these
words: "There are obvious limits of propriety to the persistent expression
of opinions that do not command the agreement of the court. But as this
case presents a somewhat new field, * * * I venture a few words to
explain my dissent." Federal Trade Comm. v. Beech-Nut Packing Co.,
257 U. S. 441, 456.
And where a particular constitutional issue comes to the Supreme Court
for ultimate decision as a point of first impression, it verges on the
ridiculous to hand up, as though it were a vital bit of newly-discovered
evidence at a trial, a district court opinion just written on the precise
question. To rely on that as "authority" all but amounts to picketing the
courtroom from within (outside picketing having now been forbidden by
Congress) .37
Third, what weight do decisions of State courts of last resort have when
cited to any Federal court in connection with federal questions? The answer
must be, very little—except in connection with details of procedure on
which the Federal Rules are unclear, and on which there is as yet no
substantial body of Federal law. State cases on constitutional issues such as
due process are particularly unhelpful, especially when they reflect the
judicial hostility to legislation that was so prevalent in State courts of last
resort prior to about 1920.38
33 352 U. S. 220.
 34 It was first enacted in 1793, and from 1911 to 1948 was §265 of the
Judicial Code. See Toucey v. New York Life Ins. Co., 314 U. S. 118, 129-
134.
35 352 U. S. at 226, note 3.
36 327 U. S. 114.
3718 U.S.C. § 1507; 40 U.S.C. §§ 13f-13p.
38 See Pound, Liberty of Contract, 18 Yale L. J. 454. It was the
decision in Ives v. South Buffalo Ry. Co., 201 N. Y. 271, 93 N.E. 431
(1911), holding that a state workmen's compensation law violated the
Federal Constitution, that led Congress in 1914 to grant the Supreme
Court power to review state court decisions sustaining a claim of federal
right. See Frankfurter and Landis, The Business of the Supreme Court
(1927) 188-198. The statutory provision is now 28 U.S.C. § 1257 (3) .
Section 50. The case in point.
—In the Supreme Court, certainly as that august tribunal was constituted
in the final stages of its most flexible era, when stare decisis was hardly
paid lip service,39 citation of the case in point was by no means the last
word.
A shining example from my own experience during that period was
Girouard v. United States,40 the case which held that a conscientious
objector was eligible for citizenship. The petitioner, a Seventh Day
Adventist, had expressed himself as willing to serve in the armed forces but
unwilling to bear arms. As a matter of precedent, his case was ruled, not by
that of Rosika Schwimmer41 who was a fairly fuzzy-minded, world-
brotherhood, there-is-no-sovereignty brand of female pacifist; nor by that of
Douglas Macintosh,42 who desired to pass on the justness or unjustness of
each particular war as it arose, so that he could determine for himself
whether to participate; but by that of Marie Bland,43 (argued and decided
together with the last preceding), the Canadian nurse who did not object to
war but only to bearing arms.
But—the authority of the Bland case, notwithstanding the then recently
decided case that sustained a state court's refusal to admit a conscientious
objector to the bar,44 would not have won a single vote in the Girouard
case; no justice was willing to support Schwimmer, Macintosh, or Bland as
a matter of judicial decision.45 The Government had therefore to establish a
legislative ratification of the earlier decisions. Even that did not convince a
majority of the Court, although it did persuade Chief Justice Stone, who had
joined in the Macintosh and Bland dissents, as well as Mr. Justice
Frankfurter, who, while still on the Harvard Law School faculty, had been
active in sponsoring a legislative repeal of the earlier cases.46
39
For an exposition of the prevailing philosophy, see [Mr. Justice]
Douglas, Stare Decisis (1946). See also note 171, supra, p. 108.
40 328 U.S. 61.
41 279 U. S. 644.
42 283 U. S. 605.
43 283 U. S. 636.
44 In re Summers, 325 U. S. 561.
45 "With three other Justices of the Court I dissented in the Macintosh
and Bland cases, for reasons which the Court now adopts as ground for
overruling them. Since this Court in three considered earlier opinions has
rejected the construction of the statute for which the dissenting Justices
contended, the question, which for me is decisive of the present case, is
whether Congress has likewise rejected that construction by its
subsequent legislative action, and has adopted and confirmed the Court's
earlier construction of the statutes in question. A study of Congressional
action taken with respect to proposals for amendment of the
naturalization laws since the decision in the Schwimmer case, leads me to
conclude that Congress has adopted and confirmed this Court's earlier
construction of the naturalization laws. For that reason alone I think that
the judgment should be affirmed." Stone, C. J., dissenting, 328 U. S. at
72-73.
In short, in this particular instance the case in point, without more, did
not get a single vote.
 Section 51. When there is no case in point.
—When there is no case in point, either in the Supreme Court or in some
lower Federal court, you must draw on other resources. You must have
recourse, first of all, to analysis. If you have nothing but logic and
reasoning to support and sustain your analysis, by all means use logic. But
usually there is available something more than simply your own process of
reasoning. There are almost always analogies to which you can profitably
turn. Frequently you can make effective use of legislative materials and
legislative history. Not infrequently, you will find helpful noncase materials
for the asking. But, above all, you must never let a good argument die for
want of a decision in point.
This admonition is fully documented in the sections that follow, which
discuss the technique of using analogies, the problems involved in statutory
analysis and the ascertainment of legislative history, the complexities of
distinguishing cases that at first blush appear to be against you, and the use,
citation, and reliance upon noncase materials.
In short, when a lawyer says of his case, "There's no law on it," he
reveals not so much the paucity of available materials as the limitations of
his own professional capabilities.

Section 52. Use of analogies.

—The use of apt analogies, I am coming more and more to believe, is the
mark of a really good lawyer. Any clerk can look up cases in the digests,
but it takes an active, a trained, and above all a resourceful legal mind to
search for and find persuasive analogies.
Two fine lawyerlike examples that remain vividly in mind are Mr. Justice
Cardozo's analogies in the Social Security cases,47 and Alfred Bettman's
article on the Constitutionality of Zoning 48 (which antedated and forecast
the Supreme Court's decision on the question) ,49 Examine those, study the
technique of comparison there employed, and you will begin to appreciate
the essential difference between a lawyer on the one hand and a mere
attorney at law on the other.
 46See Hearings before the House Committee on Immigration and
Naturalization on H.R. 297, 72d Cong., 1st sess., p. 68; and see 75 Cong.
Rec. 15356.
47
Steward Machine Co. v. Davis, 301 U. S. 548; Helvering v. Davis,
301 U. S. 619.
Of course analogies must be accurate, and they must not be carried too
far. Two of our greatest judges have left us warnings on that score. Mr.
Justice Holmes said: "As long as the matter to be considered is debated in
artificial terms there is a danger of being led by a technical definition to
apply a certain name, and then to deduce consequences which have no
relation to the grounds on which the name was applied." 50 And thirty years
later Mr. Justice Cardozo remarked that "When things are called by the
same name it is easy for the mind to slide into an assumption that the verbal
identity is accompanied in all its sequences by identity of meaning." 51
But, more frequently than otherwise, the real difficulty is not that the
analogy used is doubtful or that it is sought to be extended too far; the
trouble is that the lawyer never invokes any analogy at all. The corpus is
now so large that, with the inevitable specialization which follows, the
current thinking of many if not most practitioners is marked by too much
compartmentalization, and far too little cross-fertilization. Not infrequently,
judges are apt to think that their colleagues share the bar's shortcomings in
this respect in not paying adequate heed to analogous situations.52
All too often, the best analogies occur to the brief-writer after the case is
over. Thus, on the loss-of-jurisdiction point in the case of the serviceman's
wife whom the Air Force sought to retry by court-martial in the District of
Columbia after her first conviction following military trial in England had
been set aside,53 I argued that, under an unbroken line of military rulings,
any act of the Government separating an individual from the service
terminated military jurisdiction over him,54 and that accordingly to return
Mrs. Covert to the United States, and, above all, to place her in civilian
custody, made her no longer amenable to military trial.55 This point was
decided adversely on the first argument,56 and on the rehearing the
Government argued that the Air Force's actions evidenced an intent to
continue the jurisdiction. I replied that the question of retaining or losing
jurisdiction turned on objective acts.57 I should also have cited—but did
not, because not regularly dealing with the field—the then recent case of
Savorgnan v. United States/5 which held that Mrs. Savorgnan had
expatriated herself by naturalization in Italy followed by residence abroad,
and that her intention not to give up her American citizenship when she
performed those acts was immaterial.
48 37 Harv. L. Rev. 834 (May 1924).
49 Euclid v. Ambler Realty Co., 272 U. S. 365 (November 1926).
50 Guy v. Donald, 203 U. S. 399, 406.
51 Lowden v. Northwestern National Bank, 298 U. S. 160, 165.
52 Cf. United States v. Atlantic Mut. Ins. Co., 343 U. S. 236, 242-243
(Frankfurter and Burton, JJ., dissenting); Pennsylvania Coal Co. v.
Mahon, 260 U. S. 393, 416-422, especially at 422 (Brandeis, J.,
dissenting).
53 United States v. Covert, 6 USCMA 48, 19 CMR 174.
The scope of the thrust of the argument originally made in the district
court on the woman's behalf appears from In re Varney's Petition, 141 F.
Supp. 190, 204 (S.D. Calif.) , as follows:
Similarly, I argued that, whatever might have been Mrs. Covert's
amenability to military jurisdiction when she was in England, once she was
returned to the United States and her conviction was set aside, she came
again within the protection of the Sixth Amendment. I cited Lord
Mansfield's famous decision in the case of the slave Somerset, brought by
his master from Virginia to England in 1772: once the Negro reached
English soil he was free.59 I should also have cited, but did not because
unacquainted with them at the time, the host of early cases, from Northern
and Southern courts alike, holding that a slave brought to reside in a free
State became free in consequence.60
"One of the important distinctions between that case and this case is
well illustrated by the dramatic and accurate statement made by counsel
to open his case on behalf of Mrs. Covert in the District Court:
 "'Mr. Wiener: If the Court please, the question in this case is whether a
woman, who all of her life has been a civilian, may be tried by an Air
Force court martial in time of peace here in the District of Columbia and
literally within the shadow of the Capitol dome.'" 54Winthrop, Military
Law and Precedents (2d ed. 1896)* 116-118; Dig. Op. JAG, 1912, p.
514; Dig. Op. JAG, 1912-1940, pp. 162-163; 5 Bull. JAG 35; id. 278;
United States v. Sippel, 4 USCMA 50, 53, 15 CMR 50, 53. Later military
rulings may in some respects have changed the earlier rule. United States
v. Speller, 8 USCMA 363, 24 CMR 173; United States v. Robertson, 8
USCMA 421, 24 CMR 231. See, however, United States v. Scott, 11
USCMA 646, 29 CMR 462.
55 While Article of War 2(e) of 1916 through 1948 (10 U.S.C. [1926 to
1946 eds ] § 1472 (e)) rendered subject to military law "All persons
under sentence adjudged by courts-martial," Article 2 (7) of the Uniform
Code of Military Justice (now 10 U.S.C. § 802 (7)) limits amenability to
"All persons in custody of the armed forces serving a sentence imposed
by a court-martial." After her return to the United States following her
trial abroad, Mrs. Covert had at all times been in civilian custody.
56 Reid v. Covert, 351 U. S. 487.
57 Authorities cited in note 54, supra; also United States v. Cooke, 336
U. S. 210.
58 338 U. S. 491.

Section 53. Handling authorities apparently against you.

— One of the most difficult problems for the brief-writer is how to deal
with decisions that appear to be against him—and that quite frequently live
fully up to their appearances.
Some approaches to this problem have already been discussed in the
preceding chapter; see Sections 34 and 35, above.
One solution is to ignore the offending precedent—always provided, of
course, that it is not a square holding—and to deal with it sub silentio. In
the Haupt treason case,61 we—that is to say, Government counsel—were
faced with some very strong and, as we believed, very wrong language
from the recently decided Cramer treason case.62 See Section 35 (e), supra.
We felt that we had a winning case on the facts, that Haupt was strong in
every respect where Cramer had been weak. So we undertook to chart an
independent course through the historical and judicial materials, which
would show beyond peradventure that the language of the Cramer case was
wrong—but which carefully avoided saying so directly. For the text of the
effort, see Point II of the Government's brief in that case; 68 for the text of
the result, see the opinion of the Court, and particularly the concurring
opinion of Mr. Justice Douglas, who had earlier written the dissent in
Cramer.1*
(I should say parenthetically here that, although I fully appreciate the
reluctance of any reader to haul down numerous volumes from library
shelves, there is really no way of learning the techniques of advocacy other
than by the detailed examination of briefs and opinions, plus—ideally—
actually hearing the cases argued. The older reporters knew this, and so set
down the points of counsel as well as the opinion of the court.)
59 Somerset v. Stewart, Lofft 1, 21 How. St. Tr. 1.
60
See Levy, The Law of the Commonwealth and Chief Justice Shaw
(1957) 61-71, citing cases from many jurisdictions.
61 Haupt v. United States, 330 U. S. 631.
62 Cramer v. United States, 325 U. S. 1.
63No. 49, Oct. T. 1946. It appeared at pp. 350-369 of the earlier
version of the present work.
64 See 330 U. S. at 644; 325 U. S. at 48.
Another solution is to attack the offending precedent boldly and frontally.
As has been indicated above, Section 35 (e), this is an operation that
engenders much resistance. It is really successful only when the precedent
is generally acknowledged to be on its last legs.
The third way is to distinguish it, a process that is virtually as old as the
common law itself. As early as 1310 and 1314, "The fascinating game of
'distinguishing' is already popular," 65 and the serjeants even then are
recorded in the Year Books as saying "Non est simile," "N'est pas
semblable," "Not a like case." They, no less than their successors six and a
half centuries later, were asking themselves the question, "How can a
lawyer most effectively distinguish a case apparently against him?"
The soundest advice on this score is to distinguish the offending
precedent boldly: go on a broad ground, don't get bogged down in finicky
details, and don't go in for overrefined analysis.
On this point also I found the Haupt case 66 most instructive —in
teaching me what not to do in the future.
In that case, twelve overt acts of treason had been submitted to the jury,
which returned a general verdict of guilty. We argued first that each of the
twelve overt acts was supported by the evidence of the required two
witnesses.67 We then went on to argue that, even if some of the overt acts
should be deemed not to have been proved by two sufficient witnesses, the
judgment of conviction must still be affirmed.
That argument was primarily based on the proposition that, as a matter of
the substantive law of treason, it was sufficient to sustain a conviction if, on
review subsequent to trial, one overt act charged had been proved by two
witnesses, even though additional overt acts alleged in the indictment were
not so proved. Such had been the English law since 1660;68 the earliest
American decision was the same; 69 and every modern American jury
considering a case of treason had uniformly been charged to the same
effect.70 An unbroken rule of law from 1660 to 1943, continuous over a
period of 283 years, should have been fairly persuasive. But the point was
not briefed in the Cramer case, which came to the Supreme Court in 1945.
There the Court held that two of the three overt acts submitted to the jury
had been insufficient, after which it went on to hold, in a footnote:
65Allen, Law in the Making (6th ed. 1958) 187, giving many
references at 187-188.
66 Supra note 61.
67 See note 63, supra.
68
Trial of the Regicides, 5 How. St. Tr. 947, 1033; Trial of Robert
Lowick, 13 How. St. Tr. 267, 277; Trial of Christopher Layer, 16 How.
 St. Tr. 94, 313-314; s.c., sub nom. The King v. Layer, 8 Mod. 82, 93; 1
Hale, History of the Pleas of the Crown *122; Foster, Crown Law (1st ed.
1762) 194; 2 Hawkins, Pleas of the Crown (4th ed. 1762) 436.
The verdict in this case was a general one of guilty, without special
findings as to the acts on which it rests. Since it is not possible to identify
the grounds on which Cramer was convicted, the verdict must be set aside if
any of the separable acts submitted was insufficient. Stromberg v.
California, 283 U. S. 359, 368; Williams v. North Carolina, 317 U. S. 287,
292. * * * 71
The way that this footnote should have been dealt with in the Haupt case
was as follows: First, the prosecution should have pointed out that for 283
years the rule of substantive law in treason cases had been just the contrary;
that in the then fairly recent Stephan case 72 the conviction was sustained on
appeal notwithstanding the Sixth Circuit's determination of the
insufficiency, as a matter of two-witness proof, of four of the ten overt acts
submitted to the jury; and that none of the voluminous briefs filed in the
Cramer case had brought any of these authorities to the Supreme Court's
attention. (In view of the disposition made of the Cramer case, the way was
probably not open for an argument that the holding, having been contained
in a footnote, was not to be regarded as a precedent.) 73
69
Case of Fries, Fed. Case No. 5127, 9 Fed. Cas. at 932 (CCD. Pa.
1800) .
70United States v. Fricke, 259 Fed. 673, 677 (S.D.N.Y.); Stephan v.
United States, 133 F. 2d 87, 92 (C.A. 6), certiorari denied, 318 U. S. 781
(see R. 326, 339-341, No. 792, Oct. T. 1942); United States v. Haupt, 47
F. Supp. 836, 839 (N.D. 111.), reversed on other grounds, 136 F. 2d 661
(CA. 7); Cramer v. United States, 325 U. S. 1 (R. 442, 446, No. 13, Oct.
T. 1944); Haupt v. United States, 330 U. S. 631 (R. 39, No. 49, Oct. T.
1946).
71 325 U. S. at 36, n. 45.
72
Stephan v. United States, 133 F. 2d 87 (CA. 6), certiorari denied,
318 U. S. 781.
 73 There was long current a remark attributed to Chief Justice Hughes
to the effect that "I will not be bound by a footnote," but unfortunately it
is not to be found in any opinion he wrote. Indeed, the footnote in the
first Carotene case, to the effect that "There may be narrower scope for
operation of the presumption of constitutionality when legislation
appears on its face to be within a specific prohibition of the Constitution,
such as those of the first ten amendments, which are deemed equally
specific when held to be embraced within the Fourteenth" (United States
v. Carotene Products Co., 304 U. S. 144, 152, n. 4) , foreshadowed, for
better or worse, a good deal of constitutional doctrine of the 1940's.
Thereafter it was vigorously questioned (see Frankfurter, J., concurring,
in Kovacs v. Cooper, 336 U. S. 77, 90-92), and at this writing the
Carotene footnote is in disfavor; currently no provision of the
Constitution enjoys preference over any other. See Ullmann v. United
Stales, 350 U. S. 422, 428-429.
Second, and here is the nub of the matter, the Stromberg and Williams
cases, cited in the Cramer footnote, should have been distinguished on a
broad ground, viz., that they dealt with the Supreme Court's review of
Federal questions coming up from State courts, whereas what was here
presented was appellate review of the sufficiency of a conviction for
treason, which involved a wellsettled rule of substantive criminal law.
I say, that is the way the Cramer footnote should have been dealt with.
Unfortunately, I went into far more detail. After stating the rule in the
treason cases, I went on to discuss some analogous general rules, viz., that,
in mail fraud and conspiracy cases, a verdict stands if a single overt act has
been proved, even though the others may be bad; that, in any kind of
criminal case, a general verdict on an indictment containing many counts is
supported by a single good count; and, similarly, with a general sentence. I
argued that, since special verdicts are not generally employed in criminal
cases, a contrary rule would mean that a defendant could never be charged
with more than one overt act of treason except at the risk of acquittal if a
single additional overt act submitted to the jury failed of proof; "that is to
say, the more active the traitor and the more complex his treason, the better
his chances of escaping the noose." Then I went on to a detailed analysis of
the Stromberg and Williams cases—without stressing the real distinction
mentioned above. Finally, I urged that since the doing of the overt acts was
not disputed, the jury could not have been misled by an insufficiency of
proof as to any overt act.
The result? A reafnrmance of the rule of the Cramer footnote —in
another footnote! The Court said:
When, speaking of a general verdict of guilty in Cramer v. United States,
325 U. S. I, 36, n. 45, we said "Since it is not possible to identify the
grounds on which Cramer was convicted, the verdict must be set aside if
any of the separable acts submitted was insufficient," of course we did not
hold that one overt act properly proved and submitted would not sustain a
conviction if the proof of other overt acts was insufficient. One such act
may prove treason, and on review the conviction would be sustained,
provided the record makes clear that the jury convicted on that overt act.
But where several acts are pleaded in a single count and submitted to the
jury, under instructions which allow a verdict of guilty on any one or more
of such acts, a reviewing court has no way of knowing that any wrongly
submitted act was not the one convicted upon. If acts were pleaded in
separate counts, or a special verdict were required as to each overt act of a
single count, the conviction could be sustained on a single well-proved
act.74
In consequence, prosecutors in later treason cases always asked for
special verdicts on the overt acts submitted to the jury.75 Possibly the result
on this point in Haupt might have been the same if the Stromberg and
Williams cases had been properly distinguished on broad grounds.76 At any
rate, I have long been certain that it was poor argumentation and
presentation to spin the matter out in such great detail, and that the only
effective way to have handled the apparently adverse decisions would have
been on the basis of the broad distinction suggested above.
In due course, another opportunity to wrestle with a particularly difficult
question of how best to distinguish an unusually troublesome precedent
presented itself.
As has already been mentioned (pp. 112-113, supra), on the rehearing of
the cases involving the constitutionality of military trials of servicemen's
dependents, counsel for the civilian women decided not to request a direct
overruling of the most pertinent earlier decision. To recall the problem
briefly to mind in the present connection, the Supreme Court in its first
opinion 77 had relied very strongly on In re RossTM a decision from 1891
which had upheld, as against a claim to a jury, the trial by an American
consular court in Japan of a seaman who was part of the crew of an
American ship.
74 Haupt v. United States, 330 U. S. at 641, n. I.
75 See, e.g., Chandler v. United States, 171 F. 2d 921 (C.A.I),
certiorari denied, 336 U. S. 918; Gillars v. United States, 182 F. 2d 962
(D. C. Cir.); Best v. United States, 184 F. 2d 131 (C.A.I), certiorari
denied, 340 U. S. 939; Burgman v. United States, 188 F. 2d 637 (D. C.
Cir.); Kawakita v. United States, 190 F. 2d 506 (C.A.9), affirmed, 343 U.
S. 717.
76 Compare Terminiello v. Chicago, 337 U. S. 1, for an extreme
example of finding a federal question; Vinson, C. J. dissenting, remarked
(337 U. S. at 7) that "the offending sentence in the charge to the jury was
no part of the case until this Court's independent research ferreted it out
of a lengthy and somewhat confused record."
77 Kinsella v. Krueger, 351 U. S. 470.
78 140 U. S. 453.
Had Ross come up in the 1950's as an original proposition, it would
probably have been decided differently. For while the basis of Ross, as
stated therein, was that "The Constitution can have no operation in another
country," 79 the Supreme Court had subsequently held that "The
Constitution of the United States is in force * * * wherever and whenever
the sovereign power of that government is exerted." 80 But—American
consular jurisdiction had existed since before the adoption of the
Constitution,81 it had been exercised for 170 years, and at least one
individual had been hanged pursuant to the sentence of a consular court.82
Consequently, even though by the time of the grant of the rehearing the
consular jurisdiction had been abolished by the President pursuant to
congressional authorization,83 it was felt that a square overruling of Ross
would hardly be palatable fare for the Court, and so had better not be
requested. Accordingly, starting from the suggestive leads in one of the first
opinions,84 the following argument was developed in the attempt to
distinguish the Ross case persuasively:
Extraterritorial military jurisdiction over military personnel flows from
hitherto accepted doctrines of international law,85 whereas the consular
jurisdiction rests on express treaty provisions.86 The only basis for
sustaining the non-jury aspect of the consular jurisdiction is that it dated
from 1786-1787,87 that it was thus pre-constitutional, and that it was
accordingly impliedly excepted from the Sixth Amendment, just as are
trials by courtmartial of military personnel,88 trials of petty offenders by
judges of inferior courts,89 trials by the court alone of contemnors,90 and
trials by military tribunals of offenders against the laws of war.91 But that is
also the reason why these women cannot be tried by court-martial; they had
a right to jury trial in 1789 and before.92 Those arguments convinced a
majority of the Court, in varying degrees. Black, J., for himself and three
other Justices said:
79 140 U. S. at 464.
80 Balzac v. Porto Rico, 258 U. S. 298, 312.
81 See Arts. 20 and 21 of the Treaty with the Emperor of Morocco, 8
Stat. 100, 103.
82Diplomatic Correspondence, 1864 (H. Ex. Doc. 1, 38th Cong., 2d
sess.), Part III, pp. 400-419.
83Act of Aug. 1, 1956, c. 807, 70 Stat. 773; 35 Dept. of State Bull.
844 (Nov. 26, 1956).
84
See the reservation of Frankfurter, J., 351 U. S. at 481, especially at
482-485.
85 See The Schooner Exchange v. M'Faddon, 7 Cranch 116, 139-140;
Coleman v. Tennessee, 97 U. S. 509, 515; Dow v. Johnson, 100 U. S.
158, 165; Chung Chi Cheung v. The King, [1939] A.C. 160; cf.
Reference re Exemption of U. S. Forces from Canadian Law, [1943] 4
D.L.R.I 1. There is an extensive literature on the subject, but probably
the better view is that the doctrine of Wilson v. Girard, 354 U. S. 524,
rests on waiver.
 86
2 Moore, Digest of International Law, 593-727; 2 Hackworth,
Digest of International Law, 512-534.
The Ross approach that the Constitution has no applicability abroad has
long since been directly repudiated by numerous cases. That approach is
obviously erroneous if the United States Government, which has no power
except that granted by the Constitution, can and does try citizens for crimes
committed abroad. Thus the Ross case rested, at least in substantial part, on
a fundamental misconception and the most that can be said in support of the
result reached there is that the consular court jurisdiction had a long history
antedating the adoption of the Constitution. The Congress has recently
buried the consular system of trying Americans. We are not willing to
jeopardize the lives and liberties of Americans by disinterring it. At best,
the Ross case should be left as a relic from a different era.93
Frankfurter, J., concurring in the result, examined at length the history of
consular courts, and said inter alia:
Insofar as the opinion [in Ross] expressed a view that the Constitution is
not operative outside the United States * * * it expressed a notion that has
long since evaporated. * * *
The significance of the Ross case and its relevance to the present cases
cannot be assessed unless due regard is accorded the historical context in
which that case was decided. Ross is not rooted in any abstract principle or
comprehensive theory touching constitutional power or its restrictions. It
was decided with reference to a very particular practical problem with a
long history. * * *
87 See the Treaty cited in note 81, supra, and 32 J. Cont. Cong. 353,
363
364.
88 Whelchel v. McDonald, 340 U. S. 122, 126-127.
89
District of Columbia v. Clawans, 300 U. S. 617; District of
Columbia v. Colts, 282 U. S. 63.
90In re Debs, 158 U. S. 564, 594-596; and see accord, decided
afterwards, Green v. United States, 356 U. S. 165.
 91 Ex parte Quirin, 317 U. S. 1; In re Yamashita, 327 U. S. 1.
92 See 1 Winthrop, Military Law & Precedents (2d ed. 1896) *I44-
146; Dig. Op. JAG, 1912, p. 513.
93 354 U. S. at 12 (footnotes omitted).
The Ross case, therefore, arose out of, and rests on, very special,
confined circumstances, and cannot be applied automatically to the present
situation * * * 94
And Harlan, J., also concurring in the result, expressed agreement with
what Frankfurter, J., had written about the Ross case.95 Two justices
dissented.96
Plainly enough, not every phase of the arguments made against Ross on
the rehearing of the court-martial cases prevailed. But the result was that a
majority of the Court no longer relied upon the Ross case as a basis for
sustaining the military trials, and the several opinions also demonstrated the
soundness of not having made an out-and-out request to overrule Ross: such
a request would not have gained the concurrence of a majority of the Court.
Finally, for detailed study of how a great legal craftsman goes about
distinguishing and dealing with authorities that stand in his way, the reader
is referred to Professor Bickel's fascinating recent work, The Unpublished
Opinions of Mr. Justice Brandeis?1 There he will see, in concrete fashion,
the techniques employed in this field by a consummate master of the art.

Section 54. Use of dissenting and concurring opinions.

— When you are not counsel in a case, but are above the conflict, writing
for a non-judicial audience on what the law should be, you are of course
perfectly free to quote from dissenting opinions, and to indicate why you
prefer the reasoning these set out. As the old professor put it, "What the
court says carries no mandate to the logical faculty."
But when you are counsel seeking to win an appeal for your client, you
need the votes of a majority of the court in which the case is pending, and
consequently you will not help to persuade the judges by quoting from
dissents that failed to persuade them, particularly from recent dissents. If
the court in question currently follows stare decisis, this point would appear
to be almost too obvious to require mention.
94 354 U. S. at 56, 64.
95 354 U. S. at 67, 74-75.
96 354 U. S. at 78.
97 (1957).
We have, however, experienced something of a bloodless constitutional
revolution since 1937, in which some notable earlier dissents, by judges of
the stature of Holmes, Hughes, Brandeis, Cardozo, and Stone, have become
law. See Section 35 (e), above. So there has developed, especially in some
law schools, a veritable cult of dissent, to such an extent that the lads in
their moot court cases will frequently cite the dissenting opinions of a judge
whom they like in preference to the majority opinions written by a judge
whom they hold in disesteem.
Some carry that habit with them after admission to the bar— where it can
only hurt their client's causes.98
Just ask yourself this question: If there was a strong dissent in a 7-2 case,
and five of the original seven are still on the bench, do you really think you
can persuade any of them by quoting the views with which they disagreed,
views that expressed in forceful language their own error? Of course not;
your task is to persuade three additional judges, and to rely on the old
dissent is just the way to fail in that endeavor.
Much the same principle applies to concurring opinions. Those are very
helpful to the advocate in any situation where he needs to pick up votes,
because they show how the concurring judges feel about the problem, and
thus they enable him to shape his arguments in an effort to persuade those
judges in the next case. But don't quote from the concurring opinions in the
hope that somehow the passage in the brief will prove more persuasive with
the other judges now than it was in conference when it was first considered
by them.
Reliance on, and quotations from, concurring opinions in a brief are
justified only where a court was so divided that no single opinion expressed
the views of a majority. In that currently not at all unusual situation," it is
perfectly proper—indeed it is often necessary—to urge the concurring
views. But don't quote a single judge's views too obviously; he will think
you are just trying to curry favor, even to fawn, while the others, whom he
failed to persuade in the first instance, are not likely to be persuaded by you
at second hand.
98For a useful, because realistically practical, evaluation of dissenting
opinions, the reader should examine Mr. Justice Jackson's posthumously
published work, The Supreme Court in the American System of
Government (1955) 17-19.
See also Mr. Justice Jackson's comments on how a judge feels when
dissenting opinions or extracurricular works are cited. Jackson, Advocacy
Before the Supreme Court: Suggestions for Effective Case Presentations,
37 A.B.A.J. 801, 804.
99See Note, Supreme Court No-Clear Majority Decisions: A Study in
Stare Decisis, 24 U. of Chi. L. Rev. 99.
Indeed, it is of the essence of advocacy that one endeavors to avoid
stirring up opposition on non-essential or collateral matters. Some judges,
once they have been outvoted, put the matter to one side, filing it mentally
under "finished business." With others, however, a sharp difference of
opinion leaves a mark, so that the feelings it engendered are apt to rankle,
and for a much longer time than many outsiders would suppose.
Therefore, skirt around the differences disclosed in the reports, if at all
possible, and, when you can, use a formula substantially like this: "The
issue that divided the Court in Doe v. United States is not present here."
Narrow the area of disagreement as far as feasible—and don't, don't, DON'T
cite recent dissenting opinions if your objective is victory on appeal.

Section 55. Briefs filed in earlier cases involving the same or

related questions.
—Not only does the examination of briefs aid the lawyer who is studying
the techniques of advocacy {supra, Section 20), but, if the case in which
they were filed is related to the one presently before him, he is bound to
find therein, at the very least, a good deal of suggestive material. Any
lawyer who has access to collections of briefs is therefore very fortunate.
The fact that more and more libraries now have microfilm collections of
Supreme Court briefs (Section 2, supra) testifies to a growing recognition
of the importance of those documents.
First of all, if some other lawyer has written a winning brief on the point
on which your case will turn, you may save yourself untold preliminary
labor by starting your research there. (I say "may," because on occasion
examination discloses that it was the court and not the lawyer whose
argument won the case.) Once a brief has been filed, of course, it becomes a
public document; there is no copyright and hence no infringement; this is
therefore a field, preeminently, for the cynical advice to "plagiarize,
plagiarize, plagiarize—but remember, please, always to call it 'research.'"
But there is a second and frequently even more compelling reason for
examining briefs filed in earlier cases that involved questions similar to or
identical with those in your own case.
It is written in the Bible, "behold, my desire is, * * * that mine adversary
had written a book." 100 Well, if mine adversary had written a brief, the
chances are that he wrote something very different the last time, particularly
if he represents the Government, which, more frequently than not, takes
inconsistent litigating positions, sometimes (as in tax matters) because it
must.
Mere inconsistency, of course, proves nothing; you are not going to win
any appeal simply by making debating points, and of course it is not
necessary to cite authority for the proposition that the United States is not
subject to estoppel. But if you can establish, through indisputable
references, that the other side has made a complete about-face on an issue
of substance, or on any proposition that was never fairly debatable, it puts at
least a crimp into that party's arguments, and it may well enable you to
advance your own presentation right at the outset.
Here are some recent examples that illustrate the uses—and the
limitations—of confronting the other side with its earlier arguments.
(a) In Swift & Co. v. United States,101 the basic issue was whether the
railroads' refusal to deliver livestock at the Swift siding in Chicago without
an extra and designedly prohibitive switching charge, in the face of delivery
without this charge at the Union Stock Yards, only a few city blocks away,
amounted to an unreasonable discrimination under the Interstate Commerce
Act. The intervening railroads, whose charges were in issue, and who were
defending far more vigorously than the Government, filed as an appendix to
their brief a brief that some of Swift's counsel, on behalf of a Swift
subsidiary, had presented to the Interstate Commerce Commission twenty
years previously, when transportation conditions in the Chicago stockyards
area were vastly different.102 Plainly, there is no estoppel against the
assertion of rights under the Interstate Commerce Act,103 and it may well be
that the reproduction of this document earned the strictures that Swift's
reply brief made about it.104 Swift lost the case, and while no one can say
what contribution, if any, the old document made toward that result, one
point was clear: it didn't help Swift.
100 Job, xxxi. 35.
101 343 U. S. 373.
102 The earlier case was Hygrade Food Products Corp. v. Atchison, T.
& S. F. Ry. Co., 195 I.C.C. 553; a decree dismissing a suit to enjoin the
enforcement of that order was reversed by the Supreme Court. Atchison,
T. ir S. F. Ry. Co. v. United States, 295 U. S. 193. When the earlier brief
was written, rail shipments of livestock to the Union Stock Yards in
Chicago were nearly four times as much as similar shipments for the
latest available year shown in the record of the 1952 case.
103 Los Angeles Switching Case, 234 U. S. 294, 312-313.
(b) In Opper v. United States,105 the issue was whether, where an
admission is made to law enforcement officers after the date of the acts
charged as crimes, it so far resembles a confession as to make it
inadmissible in the absence of corroboration. Petitioner relied on
Warszower v. United States,108 where the Court had said that admissions
made prior to the crime do not require corroboration, because "They contain
none of the inherent weaknesses of confessions or admissions after the
fact." And petitioner quoted from the Government's brief in that case, to the
effect that "It is the Government's contention that independent evidence is
required only in the case of confessions, and of admissions made after the
event and in the context of conversations, interviews, and proceedings
relating to the offense itself. The theory of this position squares with the
purpose of the rule requiring corroboration." 107
The Court in Opper accepted petitioner's contention (and the Government
reasoning from its Warszower brief), and held that all admissions after the
fact, even of mere elements of the crime, and even when contained in
exculpatory statements such as Opper had made, required corroboration.108
So far, so good. But then the Court went on to consider the quantum of
corroboration that was necessary, and, resolving a conflict of long standing
between circuits, held that petitioner's statements were sufficiently
corroborated 109—and affirmed his conviction.
104 "We are at a loss to understand what legitimate purpose is now
sought to be served by the reproduction of this twenty-year-old
document, or by the repeated references thereto and quotations therefrom
which interlard the railroad appellees' brief in this case. * * * We assume,
of course, that the brief in question has not been exhumed simply to
furnish material for an extended argument ad hominem." Appellant's
Reply Brief, No. 282, Oct. T. 1951, pp. 29-30.
105 348 U. S. 84.
106 3 1 2 U. S. 342, 347.
107
Brief for the United States in No. 338, Oct. T. 1940, pp. 21-22,
quoted in Brief for the Petitioner, No. 49, Oct. T. 1954, p. 13.
108 348 U. S. at 90-92.
109
348 U. S. at 92-94, adopting the rule of Daeche v. United States,
250 Fed. 566 (C.A.2), in preference to that of Forte v. United States, 68
App. D. C. Ill, 94 F. 2d 236.
(c) In the first two cases involving the military trials of civilian
dependents, one of the issues between the parties concerned the scope of the
treaty power. As has been shown above, the Government sought to rest
those trials, at least in part, on "the power to make all laws necessary and
proper for carrying into execution the sovereign authority of the United
States to maintain relations with other sovereignties" (supra, p. 138), while
the civilian women urged that "The treaty power is completely irrelevant in
the present case" (supra, p. 139).
 In support of the latter contention, the brief for both women quoted from
the Government's brief in the then recently decided case of United States v.
Capps 110—a decision which had carefully avoided the treaty issue that had
been discussed and considered below 111—the following statements:
The basic axiom is that, as a sovereign state, the United States possesses,
in its dealing with other states, all of the normal powers of a fully
independent nation, subject to constitutional limitations like the Bill of
Rights which govern all exercise of governmental authority in this country.
Together with statutes and treaties, executive agreements are subject to
the Bill of Rights and the other clauses of the Constitution which protect all
Americans from the excesses of official authority.
In its first opinion in the court-martial cases, the Court stated that "No
questions of the legal relation between treaties and the Constitution is
presented." 112
On rehearing, the Government was at pains to refer, not to the treaty
power, but to "the powers of the United States in the conduct of foreign
affairs." 113 The women concerned cited a number of cases to the effect that
a treaty cannot authorize what the Constitution forbids, and repeated the
quotations from the Government's brief in the Capps case.
The opinion of Black, J., for himself and three other judges, demolished
the notion that a treaty or an executive agreement was somehow not subject
to constitutional limitations.114 Frankfurter, J., concurring in the result, did
not deem the treaty power sufficiently relevant to mention; while Harlan, J.,
also concurring in the result, commented: "To say that the validity of the
statute may be rested upon the inherent 'sovereign powers' of this country in
its dealings with foreign nations seems to me to be no more than begging
the question." 115
110 348 U. S. 296.
111 United States v. Guy W. Capps, Inc., 204 F. 2d 655 (C.A.4).
112 Kinsella v. Krueger, 351 U. S. 470, 480.
113
Supplemental Brief for Appellant and Petitioner on Rehearing,
Nos. 701 and 713, Oct. T. 1955, p. 3.
 114Reid v. Covert, 354 U. S. 1, 15-19.
To what extent did the quotations from the Government brief in Capps
assist in the reaching of the foregoing views? Again, no outsider can
venture any answer beyond this, that those quotations certainly didn't help
the Government's "foreign relations" arguments on the rehearing of those
cases.
(d) Nor were the quotations from its Capps brief the only passages from
the past with which the Government was confronted in the first two court-
martial cases; but here a few words by way of background are necessary.
In Madsen v. Kinsella,11* the issue was whether Mrs. Madsen, who had
killed her serviceman husband in occupied Germany, could be tried by an
American military government court created and functioning under the
authority of the American High Commissioner, a civilian. Actually, the only
novelty was that almost all previous American military government courts
had been created by a Military Governor who was a soldier in uniform,117
but the simple answer was that the President as Commander-in-Chief could
deal with occupied territory in his discretion, either directly, or through a
military department, or through the State Department.
Having been tried and convicted by a civilian-appointed military
government court, Mrs. Madsen contended that she could only have been
tried by a court-martial under then Article of War 2 (d) ,118 the forerunner of
Article 2 (11) of the Uniform Code of Military Justice.119 Mrs. Madsen thus
became the first civilian woman in legal history who sought to be tried by
court-martial; and in her brief she referred to an instance in 1825 where the
"wife or reputed wife" of a British soldier in India had been tried there by
court-martial.120 To this the Government had replied, very properly,
115 354 U. S. at 66.
116 343 U. S. 341.
117
See, e.g., Santiago v. Nogueras, 214 U. S. 260; Neely v. Henkel,
180 U. S. 109; Ex parte Ortiz, 100 Fed. 955 (CCD. Minn.). The court
considered in The Grapeshot, 9 Wall. 129, was created by an Executive
Order of President Lincoln. See United States v. Reiter, Fed. Case No.
16,146 (La. Prov. Ct.).
 118 10 U.S.C [1926 through 1946 eds.] § 1472 (d).
119 Now 10 U.S.C. §802(11).
In any event, the status of the wife or alleged wife of an English soldier
in 1825 has little bearing as to whether the wife of an American soldier was
regarded as subject to court-martial jurisdiction then or later. * * * Neither
the petitioner nor the respondent has found any case of a wife or other
dependent of a soldier who was tried by an American court-martial prior to
the revision of the Articles of War in 1916.121
The Court sustained the jurisdiction of the tribunal that tried Mrs.
Madsen.122
A few years later, when the first cases of the civilian wives tried by court-
martial originally came before the Court, the Government resurrected the
same East Indian instance, whereupon Mrs. Covert and Mrs. Smith quoted
the foregoing excerpt from the Government's Madsen brief in reply.
Subsequently, when the Government filed its reply brief on the rehearing, it
devoted over a page to two trials of soldiers' wives in British India in 1825,
and to one instance in the same place in 1831 "in which the court-martial of
an officer's wife was considered." 123
This left it open for Mrs. Covert and Mrs. Smith once more to repeat
what the Government had said in Madsen, and to add the following mordant
comment:
The circumstance that the Government now stresses the 1825 situation in
India, which in 1956 it mentioned briefly and in 1952 dismissed as
irrelevant, reflects, we think, not the suddenly inflated significance of the
British military jurisdiction in the days of the East India Company's
viceregal sovereignty, but rather the paucity of authorities from any other
source that are available for citation in support of the Government's position
in the present cases.124
120See Winthrop, Military Law & Precedents (2d ed. 1896) *133,
citing the English text referred to in note 123, below.
121 Brief for the Respondent, No. 411, Oct. T. 1951, pp. 44-45.
 122Madsen v. Kinsella, 343 U. S. 341. After the second opinion in the
Covert and Krueger cases, Mrs. Madsen again sought habeas corpus, but
again without success. Madsen v. Overholser, 251 F. 2d 387 (D. C. Cir.),
certiorari denied, 356 U. S. 920. See Reid v. Covert, 354 U. S. at 35, note
63, where the difference between the two situations is explained.
123Reply Brief for Appellant and Petitioner on Rehearing, Nos. 701
and 713, Oct. T. 1955, pp. 47-48, citing Hough, Precedents in Military
Law (London 1855) 401, 402, 628, 630. Hough was "many years a
Deputy Judge Advocate General" as a Lieutenant Colonel in the East
India Company's Service, in the days when "John Company" ruled India.
Not one of the four opinions on rehearing referred to the British India
cases—thus proving the soundness of the Government's treatment of these
instances in its 1952 Madsen brief.
One caution, however, should always be observed when citing the other
side's prior inconsistencies: If your adversary confesses error in his current
brief, either on his own motion or after you have exhibited his contrary
earlier views, and explains or at least makes a fair effort to explain why
those views are now abandoned, do not mention his earlier position further.
To do so again in that situation does not add to your argument, it only
detracts therefrom, because then repetition shades into personalities and
into the inadmissible argument ad hominem (see Section 83, below).
(e) If the reader will bear with me as I continue to refight the Covert and
Krueger cases, one other instance therein of the use of prior inconsistent
arguments should really not be passed without comment.
In Toth v. Quarles,125 the issue had been whether a discharged
serviceman, who had committed an offense while in the service, could
thereafter be tried by court-martial, there being no civil tribunal of any
description with jurisdiction over him. In their Supreme Court brief, the
Government had said, "Indeed, we think the constitutional case is, if
anything, clearer for the courtmartial of Toth, who was a soldier at the time
of his offense, than it is for a civilian accompanying the armed forces."
After the Government lost the Toth case, in the very same Term in which
the court-martial-of-dependents cases were first argued, that admission was
just too pat to be overlooked, and counsel for the civilian women used it
several times, not only in the briefs but orally as well.
However, in the face of the adverse opinions handed down subsequent to
the first hearing, there was no point in laboring the matter further. When a
litigant petitions for rehearing, he must rely on fundamentals, not on
contradictions.
124
Further Memorandum on Behalf of Appellee and Respondent, Nos.
701 and 713, Oct. T. 1955, p. 6.
125 350 U. S. 11.
On the second determination, however, the prevailing opinion picked up
that passage. Speaking for himself and three other justices, Black, J., said:
"The Government appropriately argued in Toth that the constitutional basis
for court-martialing him was clearer than for court-martialing wives who
are accompanying their husbands abroad"-—and at that juncture quoted the
passage from the Government's Toth brief in a supporting footnote!126
"Behold my desire is, * * * that mine adversary had written a book."

Section 56. Statutory analysis.

—Sometimes the answer to a given problem is found, not in judicial
decisions, but in painstaking analysis of the controlling statute. In such a
situation, a lawyer's normal reaction is to look to see how the statute has
been construed, to analyze the decisions construing it, and then to write his
brief accordingly. That is always, quite properly, the first approach, but too
often the tendency is to stop there and to rely solely on the decided cases.
The difficulty with not going further is that all too frequently the court
which first construed the statute did not have all the relevant statutory
materials before it; that it proceeded to determine the legislative intent
without examining the expressions and materials from which that intent
could be ascertained; and that subsequent decisions merely interpreted the
first case and ceased to attempt to interpret the statute. The consequence of
this technique is a stab at statutory analysis that did not analyze the statute
but only undertook to reconcile decisions that had similarly failed to
analyze it. Accordingly, the ultimate result has frequently been very far
from what Congress really had in mind when it passed the act.
So—when you deal with a problem of statutory analysis, start by
analyzing the statute, and by studying your particular provision in its
setting. In this connection, it is well to bear in mind that annotated codes
may be somewhat of a hindrance in this endeavor, for by their very wealth
of annotation they render more difficult your bird's-eye survey of the
underlying provisions. Therefore it is often helpful to get the feel of the
related sections as they appear consecutively in the official edition of the U.
S. Code, in such a way as to understand the statute as a whole, before
turning to the annotations to the separate sections in the USCA or in similar
compilations.
126 354 U. S. at 32, note 58.
Remember that you are not bound by your provision's present position,
either in the U. S. Code or in the earlier Revised Statutes. The Nye 127 and
Williams 128 cases hold that it is proper to go back to the law as originally
enacted to ascertain the congressional intent.
The Supreme Court years ago said that "The re-enacted sections are to be
given the same meaning they had in the original statute, unless a contrary
intention is plainly manifested." 129 But that is a general rule only, and then
so sapped of vitality by the qualification as to be virtually meaningless.
When is a contrary intent "plainly manifested"?
Sometimes there is no problem whatever, as when Congress in its 1948
revision of Title 28 U.S.C. abolished the Dobson 130 rule, and restored to
courts of appeals the same scope of review in Tax Court cases as they had
traditionally retained in tax cases appealed from district courts.131 Similarly,
the 1952 revision of the patent law, Title 35 U.S.C, was designed to
eliminate the Supreme Court's "flash of creative genius" requirement132 as a
condition of patentability.133
Other situations present more difficult problems. In Ex parte Collett,134 a
divided Court found that Congress in its revision of Title 28 intended to
change the law by making the doctrine of forum non conveniens
henceforward applicable in Federal Employers' Liability Act cases; a few
years later, Fourco Glass Co. v. Transmirra Corp}35 resolved, over dissent,
a conflict between circuits with a holding that the same revision made no
change in the venue provision governing patent infringement cases.
127 Nye v. United States, 313 U. S. 33.
128 Williams v. United States, 327 U. S. 711.
129 United States v. LeBris, 121 U. S. 278, 280.
130
Dobson v. Commissioner, 320 U. S. 489. See Paul, Dobson v.
Commissioner: The Strange Ways of Law and Fact, 57 Harv. L. Rev.
753.
131Section 36 of the Act of June 5, 1948, c. 646, 62 Stat. 870, 991,
amending § 1141 (a), Internal Revenue Code, 1939 (now § 7482 (a),
Internal Revenue Code, 1954).
132 Cuno Engineering Corp. v. Automatic Devices Corp., 314 U. S. 84,
91.
133 35 U.S.C. § 103. See the explanation of the section in the
committee reports, H. R. Rep. 1923 and Sen. Rep. 1979, both 82d Cong.,
2d sess. See also Federico, Commentary on the New Patent Act, pp. 19-
23, at the front of the first volume of 35 USCA.
1343 3 7 U. S. 55, and related cases: Kilpatrick v. Texas if Pacific R.
Co., 337 U. S. 75; United States v. National City Lines, 337 U. S. 78.
135 3 5 3 U. S. 222.
"Codification involves the apparent paradox that laws must be changed in
form that they may remain unchanged in substance." 136 Where the
reenactment includes a provision like that in the 1956 codification of Titles
10 and 32, to the effect that "it is the legislative purpose to restate, without
substantive change, the law replaced by those sections on the effective date
of this Act," 137 counsel is generally safe in ignoring mere changes in
phraseology. Absent such a specific direction, however, every codification
raises at least as many questions as it resolves—and thus breeds controversy
and litigation.
One final (and perhaps unsettling) word: Don't overlook Erie R. Co. v.
TompkinsTM* which stands as authority for the proposition that even long-
continued construction of a statutory provision will not be followed when
further research shows that construction to be erroneous.

Section 57. Legislative history.

—After the statute has been analyzed in its setting, the lawyer should
routinely check its legislative history: successive drafts, committee reports,
and the debates on the floor of Congress. Such material has now become
more generally accessible to the bar through publication in a number of
legislative services. In libraries, research is facilitated through reference to
the "History of Bills and Resolutions" index of the Congressional Record,
and by the fact that the later volumes of the Statutes at Large, beginning
with volume 33, show the bill number of each act.
In England, it is still not permissible in ascertaining the meaning of a
statute to look to any preliminary legislative materials.139 The first
relaxation of that rule in the United States, which came rather later in the
day than most lawyers realize, was sensible enough: where the language of
a statute was doubtful, resort might be had to the committee reports and—
but with qualifications—to the debates.140 There were later clarifications, to
the effect that little if any weight would be given to the remarks of members
not in charge of the legislation.141 In a sense, these were conventions, like
all rules of statutory construction; the task was to ascertain the "intent" of
Congress in a situation that Congress obviously did not have in mind when
the act was passed. A court construing the statute was frequently in the
position of the English judge in the not so apocryphal probate proceeding:
"This will has no meaning but it is my duty to give it one."
136 H. R. Rep. 970, 84th Cong., 1st sess., p. 8; Sen. Rep. 2484, 84th
Cong., 2d sess., p. 19. These were the committee reports on the revision
of Titles 10 and 32, U.S.C., that was enacted in 1956.
137 Sec. 49 (a) of the Act of August 10, 1956, c. 1041, 70A Stat. 640.
138 304 U. S. 64.
139
See Allen, Law in the Making (6th ed. 1958) 476-480, 497-501;
Holdsworth, Some Makers of English Law (1938) 294-296.
 For an interesting criticism of the English practice, see Frankfurter, J.,
dissenting, in Monia v. United States 317 U. S. 424, 431-432. Cf.
Commissioner v. Acker, 361 U. S. 87.
Nonetheless, the conventions were observed, so that courts would be
aloof from the conflicts of the political arena, and free from the cynical
approach of "The purpose of the statute? Why, to gain votes, of course!"
In time, however, the emphasis came to be less and less on the language
of the statute, and more and more on the legislative materials, in order to
give effect to the "intent" of Congress. "When aid to construction of the
meaning of words, as used in the statute, is available, there certainly can be
no 'rule of law' which forbids its use, however clear the words may appear
on 'superficial examination.' "142 "The meaning to be ascribed to an Act of
Congress can only be derived from a considered weighing of every relevant
aid to construction." 143
It is significant that both quotations are from cases decided on the same
day in 1940 by five-to-four votes. With the adoption of such a technique, of
course, the floodgates were open, for the "considered weighing of every
relevant aid" necessarily shifts the emphasis from "construction" to a
consideration of desirability and of social and economic values.
Preoccupation with legislative history and with the legislative debates
inevitably draws courts into an evaluation of legislative, i.e., purely
political, factors. For a considerable period, therefore, the conventional
rules for ascertaining legislative intent were given less and less weight, and
in the earlier version of this work, published in 1950, I wrote: "The
dispassionate observer may well doubt whether, for instance, after the
decisions in the Jewell Ridge portal-to-portal,144 Girouard,u5 Church,TM
and Spiegel147 cases, even strong legislative history has any meaning
whenever a majority of the Supreme Court finds itself not in accord with
that meaning—and a reading of the decisions just cited will show that this is
not at all a facetious comment."
140 E.g., among the earlier cases, which consider committee reports,
Holy Trinity Church v. United States, 143 U. S. 457, 464-465; The
Delaware, 161 U. S. 459, 472; Buttfield v. Stranahan, 192 U. S. 470,
495; Binns v. United States, 194 U. S. 486, 495-496. One of the first
cases to rely upon proceedings on the floor was United States v. St. Paul,
 M. ir M. Ry. Co., 247 U. S. 310, 316-318; but see the qualifications noted
at p. 318.
For the prevailing practice in 1939-1949, see the list of "decisions
during the past decade in which legislative history was decisive of
construction of a particular statutory provision," in the opinion of
Frankfurter, J., dissenting, in Commissioners. Estate of Church, 335 U. S.
632, 667, 687-689.
See also, for the next epoch, A Decade of Legislative History in the
Supreme Court: 1950-1959, 46 Va. L. Rev. 1408.
141E.g., McCaughn v. Hershey Chocolate Co., 283 U. S. 488, 493-
494, and cases there cited; United States v. Wrightwood Dairy Co., 315
U. S. 110, 125.
142 United States v. American Trucking Ass'ns, 310 U. S. 534, 543-
544.
143 United States v. Dickerson, 310 U. S. 554, 562.
Each of those four cases has since been legislatively overruled, at least in
part,148 and probably nothing decided thereafter has been quite as extreme.
The late Mr. Justice Jackson did a great deal to clear the atmosphere with
characteristically pithy phrases in an endeavor to return the principal
emphasis in interpretation to the language of the statute. "It is the business
of Congress to sum up its own debates in the legislation. Moreover, it is
only the words of the bill that have presidential approval, where that
approval is given. It is not to be supposed that in signing a bill the President
endorses the whole Congressional Record. For us to undertake to
reconstruct an enactment from legislative history is merely to involve the
Court in political controversies which are quite proper in the enactment of a
bill but should have no place in its interpretation." 149 And again: "I should
concur in this result more readily if the Court could reach it by analysis of
the statute instead of by psychoanalysis of Congress." 150 Both excerpts are
from concurring opinions, but a few years after his death the Court said,
"But this is a case for applying the canon of construction of the wag who
said, when the legislative history is doubtful, go to the statute." 151
144 Jewell Ridge Corp. v. Local, 325 U. S. 161.
 145 Girouard v. United States, 328 U. S. 61.
148 Commissioner v. Estate of Church, 335 U. S. 632.
147 Estate of Spiegel v. Commissioner, 335 U. S. 701.
148 (a) Jewell Ridge was overruled by the Portal-to-Portal Act of [May
14,] 1947, c. 52, 61 Stat. 84, 29 U.S.C. §§ 251-262. (b) Girouard was
overruled, at least in part, first by Sec. 29 of the Internal Security Act of
1950, c. 1024, 64 Stat. 987, 1017, which amended the oath provision
(Sec. 335 (a) of the Nationality Act of 1940), and then again by Sec. 337
(a) of the Immigration and Nationality Act of 1952, c. 477, 66 Stat. 166,
258 (now 8 U.S.C. § 1448 (a)). See Petition of Saccio, 131 F. Supp. 154
(N.D. Calif.); In re Krause's Petition, 159 F. Supp. 687 (S.D. Ala.). (c)
Church and Spiegel were overruled by Sec. 7 and 8 of the Act of Oct. 25,
1949, c. 720, 63 Stat. 891, 894
Perhaps the most amazing-—or, if one prefers, amusing—instance of
extreme reliance on interpretative materials in preference to the text sought
to be construed occurred some years ago, when the Supreme Court changed
one of the Federal Rules of Criminal Procedure, and a Court of Appeals had
difficulty in understanding the change because "we have not the aid in
interpretation of any history * * * or of any report of an Advisory
Committee or other material for enlightenment." 152 This is reminiscent of
the old-time British general who felt himself unable to direct his troops
because of the absence of any staff officer who could sign the general's
order.153
Of course there are still cases where some of the Justices feel that the
Supreme Court has improperly followed the legislative history in preference
to the statutory language, but in those instances the real issue that divided
the Court was whether that language was in fact so plain as to preclude
resort to legislative materials.154
And, needless to say, the days of "freewheeling" 155 in the interpretation
of statutes are not over, especially where constitutional issues are
involved,156 where statutes that are penal in substance or effect are being
construed,157 and, probably, where the case turns on the FELA.158 Every
lawyer no doubt has his own list of famous—or infamous—instances where
in his view undue liberties have been taken with a statute.159 But it is a
mistake to think that a return to the English rule of never looking at the
legislative materials would solve our problems here. While the word
"freewheeling" would probably never be found in any English opinion (or,
more accurately, "judgment"), the process itself, according to an eminent
authority, is one entirely familiar to English judges.160 At any rate, the
advocate in the Federal courts whose case turns on a statute must, as a
matter of invariable routine, check the legislative history. Of course, his
technique will necessarily vary from case to case. When the language of the
statute is your way and the legislative history is opposed, stress the statute;
when the situation is reversed, stress the legislative history; when both are
favorable, bear down on both—and when both are against you, talk about
the "essential purpose" of the legislation, or stress whatever helpful tidbits
you may have found in the hearings on the bill.161 But don't go to the extent
of relying on the courtroom testimony of a legislator as to what he meant
when he reported the bill—as counsel once tried to do in the Court of
Claims.162
149Schwegmann Bros. v. Calvert Distillers Corp., 341 U. S. 384, 395,
396. A few years earlier, Jackson, J., had made substantially similar
comments in Problems of Statutory Interpretation, 8 F.R.D. 121, 123-
126.
150United States v. Public Utilities Comm., 345 U. S. 295, 319. See
also the opinions of Jackson, J., in United States v. Five Gambling
Devices, 346 U. S. 441, 450; and in Adams v. Maryland, 347 U. S. 179,
183-184. Cf. A Re-Evaluation of the Use of Legislative History in the
Federal Courts, 52 Col. L. Rev. 125.
151 Greenwood v. United States, 350 U. S. 366, 374.
152United States v. Allied Stevedoring Corporation, 235 F. 2d 909
(C.A. 2) .
153This incident appears in one of the Boer War chapters of the
memoirs of some British World War I commander. I read the book some
twenty or more years ago, and regret that I cannot conveniently locate
the reference any more exactly at this time.
 154E.g., Massachusetts Bonding Co. v. United States, 352 U. S. 128;
Railway Labor Exec. Assn. v. United States, 339 U. S. 142.
155 Harlan, J., dissenting, in Sinkler v. Missouri Pacific R. Co., 356 U.
S. 326, 333.
156 E.g., Lee v. Madigan, 358 U. S. 228; Kent v. Dulles, 357 U. S. 116.
157 E.g., Ladner v. United States, 358 U. S. 169; Bonetti v. Rogers, 356
U. S. 691; Yates v. United States, 354 U. S. 298; Bell v. United States,
349 U. S.81.
158 See Sinkler v. Missouri Pacific R. Co., 356 U. S. 326. For the time
being, the easiest way to evaluate FELA cases in the Supreme Court is to
regard them, for virtually every purpose, as sui generis. Cf. Rogers v.
Missouri Pacific R. Co., 352 U. S. 500; Ringhiser v. Chesapeake ir O. R.
Co., 354 U.S. 901.
159 jy[y own ijst 0f particular pets not elsewhere cited includes, not
necessarily in order, Guessefeldt v. McGrath, 342 U. S. 308; Vermilya-
Brown Co. v. Connell, 335 U. S. 377; United States v. duPont & Co., 353
U. S. 586; and United States v. Carbone, 327 U. S. 633. This listing, it
should be understood, is representative rather than rigidly exclusive. I
should note that the VermilyaBrown Co. case has since been legislatively
overruled by Sec. 1 (1) of the Act of August 30, 1957, Pub. L. 85-231, 71
Stat. 514, now 29 U.S.C. § 213 (f).
160 Allen, Law in the Making (6th ed. 1958) 489-491, 501-512.
The lawyer dealing with State statutes is similarly unencumbered,
although for a different reason: "It's not too great an exaggeration to say
that, compared to Federal legislation, available background materials on
the intended meaning and proper interpretation of a New York statute are
virtually zero." Dana, Background Materials for Statutory Interpretation
in New York, 14 Record of the Ass'n of the Bar of the City of N. Y. 80.
181 See Note, Nonlegislative Intent as an Aid to Statutory
Interpretation (1949) 49 Col. L. Rev. 676. Compare note 164, below. For
a striking and perhaps extreme instance of reliance on matter contained
in Congressional hearings, see Shapiro v. United States, 335 U. S. 1. Cf.
Galvan v. Press, 347 U. S. 522.
 Three additional suggestions may be made for cases susceptible to the
more orthodox approach: (a) On particular occasions, the committee reports
will be valueless—because later disavowed on the floor of Congress.163 (b)
Sometimes the pay dirt is in the reports that preceded the initiation of the
legislation. Thus, some years back, the Ninth Circuit was reversed in its
construction of the 1938 Amendments to the Bankruptcy Act, in large
measure on the strength of the report of the National Bankruptcy
Conference, which had proposed the amendment to Congress.164 (c) Later
legislation may be "considered to throw a cross light" 165 on what has gone
before, and thus to confirm the earlier interpretation.166 It is therefore well
not to neglect the end of the story.
Section 58. Administrative materials.
—Today's practitioner is far better off with respect to access to Federal
regulations and similar administrative materials than was the lawyer of a
generation ago. The fiasco of the Hot Oil Case,167 which involved a
prosecution for violation of a non-existent regulation, the provision alleged
to have been violated having dropped out through an inadvertence in the
process of renumbering an amendment thereto, evoked an outcry 188 that
resulted in establishment of the Federal Register.169 Thereafter, all Federal
regulations in force were collected in the Code of Federal Regulations,
which has since been kept up to date,170 and so now there is no danger of
further hiddenball plays; although to be sure, as the essentially emotional
dissent in the Merrill case 171 teaches, there was for some time reluctance to
apply the doctrine that publication of a regulation in the Federal Register
binds all concerned quite as automatically as does passage of an Act of
Congress.

162National School of Aeronautics. Inc. v. United States, 135 C. Cls.

343, 351-352, 142 F. Supp. 933, 938-939.
163Chicago etc. R. Co. v. Acme Freight, 336 U. S. 465. 16iGoggin v.
California Labor Div., 336 U. S. 118.
165
L. Hand, J., in United States v. Aluminum Co. of America, 148 F.
2d 416, 429 (C.A.2).
 166 See Cammarano v. United States, 358 U. S. 498, 510.
167 Panama Refining Co. v. Ryan, 293 U. S. 388.
168Griswold, Government in Ignorance of the Law—A Plea for Better
Publication of Executive Legislation, 48 Harv. L. Rev. 198, written
before but published simultaneously with the argument and before the
decision in the Hot Oil Case, is the most significant article. Professor
Griswold, as he then was, had just left the Solicitor General's Office,
where of course the Hot Oil Case was pending.
The British, through the publication of Statutory Rules and Orders,
had solved the problem of publishing executive legislation, but the mass
of their parliamentary legislation is such that, even in recent years, there
have been prosecutions for alleged violations of repealed statutes. See
Allen, Law in the Making (6th ed. 1958) 427, n. 2.
But that doctrine can now hardly be questioned, and therefore in many
Federal fields it is necessary for the practitioner always to check all of the
pertinent directives promulgated pursuant to statutory authority, whether
rules of court, reorganization plans, regulations, or administrative rulings. It
is hardly necessary even to suggest such an obvious proposition to tax
practitioners. Members of that segment of the bar have numerous excellent
tax services at their disposal to keep them not only reasonably current in
this respect but actually up-to-the-minute, and they are moreover
thoroughly familiar with "the regulations problem" 172 and with the pain it
has caused and is causing them and their clients. It is difficult to resist the
conclusion that, to an extraordinary degree, the Supreme Court for the last
twenty years or so has sustained the Treasury in almost every contest that
turned on the validity of tax regulations,173 even to the length of approving
what can only be characterized as a post litem motam flip-flop.174
169 Act of July 26, 1935, c. 417, 49 Stat. 500 (44 U.S.C. §§ 301-314).
170See Sec. 11 of the Act last cited, as amended and supplemented (44
U.S.C. §§ 311-311a); see also Ex. Order 9930, Feb. 4, 1948, 13 Fed.
Reg. 519, set out after 44 USCA §311.
See, however, p. 179, below.
171 Federal Crop Ins. Corp. v. Merrill, 332 U. S. 380.
 172 See Griswold, A Summary o/ the Regulations Problem, 54 Harv. L.
Rev. 398, and other articles cited at p. 398, note 1; Feller, Addendum to
the Regulations Problem, id. at 1311; and Griswold, Postscriptum, id. at
1323.
173 Bingham's Trust v. Commissioner, 325 U. S. 365, stands as a
notable exception; but compare Lykes v. United States, 343 U. S. 118.
The Treasury has also generally been sustained in its interpretations of
equivocal regulations; here the taxpayers' few but for that reason well-
known successes are Commissioner v. Heininger, 320 U. S. 467; Lilly v.
Commissioner, 343 U. S. 90; Commissioner v. Sullivan, 356 U. S. 27;
and Commissioner v. Acker, 361 U.S. 87.
174 In Cammarano v. United States, 358 U. S. 498, which held not
deductible as ordinary and necessary business expenses sums expended
by taxpayers in appealing to the electorate to defeat an initiative measure
that would have destroyed the taxpayers' business, petitioner relied
heavily on Luther Ely Smith, 3 T. C. 696, which had permitted deduction
of sums expended to promote adoption of a constitutional amendment
that would have helped the taxpayer's business, and on the
Commissioner's long acquiescence therein, 1944 Cum. Bull. 26.
Fourteen years later—after certiorari was granted in the Cammarano
case over the Government's opposition, 355 U. S. 952—the
Commissioner withdrew his acquiescence in Luther Ely Smith. See 1958-
1 Cum. Bull. 91, first published in Int. Rev. Bull, No. 1958-21, May 26,
1958 at pp. 9, 16-17. Yet the Supreme Court in Cammarano appears to
have put some store on this delayed-action somersault. See 358 U. S. at
507, note 10.
In many other fields, too, there are administrative rulings made by
agencies and tribunals that operate in particular fields subject to Federal
regulation. Many of these rulings are published in regular series of reports
175 and in numerous unofficial but entirely authoritative services.176 The

specialist concerned must of course refer constantly to all such materials,

and indeed cannot afford to neglect any of them. For instance, although a
former Chief Judge of the Tax Court wrote that memorandum decisions of
that tribunal are not to be considered as precedents,177 the Supreme Court
recently relied on a Tax Court Memorandum to show that the Tax Court had
abandoned an earlier and fully reported decision.178
Law officers' rulings may likewise be relevant; the most important of
these are Opinions of the Attorney General, Decisions of the Comptroller
General,179 General Counsel's Memoranda in the Treasury Decisions, and,
for any question of military law antedating the creation of the Court of
Military Appeals in 1951, the opinions of the service Judge Advocates
General.180

175 The best known of these are the reports of the several regulatory
commissions and boards, viz., Civil Aeronautics Board; Federal
Communications Comm.; Federal Trade Comm.; Interstate Commerce
Comm. (three series of reports); National Labor Relations Board;
Securities and Exchange Comm.; and Tax Court, successor to the Board
of Tax Appeals.
Other well known administrative series are the Official Gazette, U. S.
Patent Office; Interior Decisions (following Land Decisions series
without change of numbering) ; Treasury Decisions; and the Cumulative
Bulletin.
A full listing of administrative reports up to 1950 will be found in
Price and Bitner, Effective Legal Research, 415-420.
176E.g., Labor Relations Reporter (including NLRB decisions,
WageHour rulings, and decisions and awards of arbitrators), and The
United States Patents Quarterly. Both these series are published by BNA.
177Murdock, What Has the Tax Court of the United States Been
Doing? 31 A.B.A.J. 297, 298-299.
178 See Cammarano v. United States, 358 U. S. 498, 507, note 10,
relying on Mosby Hotel Co., P-H 1954 TC Mem. Dec. f 54,288, to
establish a change of view by the Tax Court following its decision in
Luther Ely Smith, 3 T. C. 696.
179The Comptroller General's predecessor was the Comptroller of the
Treasury, whose opinions were published in the Comp. Dec. for a
 number of years prior to 1921. Comparison of the Comp. Dec. with the
Comp. Gen. leaves the distinct impression that the earlier series were
better reasoned and far less arbitrary.
Such rulings cannot be ignored by the brief-writer, because frequently
courts cite them in support of the result reached in their opinions.181 On
other occasions, however, an unbroken series of many rulings over a long
period, even when duly cited and pressed upon the court, will be completely
ignored.182 A somewhat different situation is presented in the Court of
Claims; there a great deal of litigation involves the frank challenging, and
indeed the frequent overturning, of prior determinations made by the
Comptroller General on the precise demands that are in issue.183 It must
always be borne in mind that all law officers' rulings are essentially ex
parte, and that they are regularly made with an eye to executive
preferences. As a very wise and discerning lawyer of an earlier day once
remarked, every volume of the Op. Att'y. Gen. carries on its title-page the
unseen but nonetheless unmistakable motto, "We strive to please." 184
Accordingly, the lawyer litigating against the Government will not,
realistically speaking, be very far
180 See Mott, Hartnett, and Morton, A Survey of the Literature of
Military Law—A Selective Bibliography, 6 Vand. L. Rev. 333; Hartnett,
Survey Extended—The Literature of Military Law Since 1952, 12 Vand.
L. Rev. 361.
The two principal present sources of military rulings below the Court
of Military Appeals are the Court-Martial Reports (CMR), which contain
opinions of Boards of Review of the several services, functioning under
Art. 66, UCMJ (10 U.S.C. § 866); and the Dig. Op. JAG, containing
opinions of the service Judge Advocates General.
181 See, e.g., the following cases saying that the opinions of the Judge
Advocate General of the Army on questions of military law are entitled
to particular weight. Hiatt v. Brown, 339 U. S. 103, 109; United States v.
Cooke, 336 U. S. 210, 216; cf. Bowen v. Johnston, 306 U. S. 19, 30.
182 p-or near]y a hundred years, the Army had held that, when a
military person against whom charges are pending is separated from the
service, not by expiration of term of service, but by affirmative act of the
Government, military jurisdiction ceases. Dig. Op. JAG (1912) 514; Dig.
Op. JAG (1912-1940) 162-163; 5 Bull. JAG 35, % 359 (6); id. 278, { 407
(3); cf. United States v. Sippel, 4 USCMA 50, 53, 15 CMR 50, 53. But in
the first opinion in Reid v. Covert, 351 U. S. 487, 492, the Supreme
Court held that "military jurisdiction, once validly attached, continues
until final disposition of the case."
183 E.g., Hamrick v. United States, 120 C. Cls. 17, 96 F. Supp. 940 (cf.
30 Comp. Gen. 40). Cf. Miguel v. McCarl, 291 U. S. 442. Indeed, to cite
"Court of Claims Reports, passim" as authority for the statement in the
text would not be very wide of the mark.
184 Ex rel. my former chief, Colonel Archibald King, U. S. Army,
Retired, who quoted his father, the late George A. King, Esq., of the
District of Columbia Bar, to this effect.
in error if he treats law officers' rulings as being essentially in the nature of
admissions against interest.
Where, however, a case turns on long-continued administrative practice
that is not reflected in published services, or on a ruling or opinion that for
some reason does not appear in the Federal Register,185 or on any
information peculiarly within the knowledge of the agency concerned,186
the Government undoubtedly has the whip hand. Such materials are not
normally available to outsiders, and where the documents in question are so
old that they have been transferred to the National Archives, the obvious
obstacle is that only a very few litigants are in a position to underwrite
inquiry there.
Back in the days of the old Model T, a waggish fellow, seeing the report
of a forfeiture case entitled United States v. One Ford Automobile,
commented that this caption reflected a most unequal contest. Well, when a
case turns on administrative materials, whether those are regulations or
unwritten practice or the files that disclose a long-continued but little
publicized course of governmental dealing, anyone litigating with the
United States is similarly engaged in an unequal contest. Only in very
limited areas have there been improvements and amelioration in the
direction of spelling out for all to read matters that formerly rested in
tradition.187 By and large, this is a problem not easy of solution, particularly
for the lawyer distant from the seat of government and whose client's means
are limited.
Nor can I forbear to add that, on occasion, the use by the Government of
materials in its own files reflects—or, on the most charitable evaluation
possible, appears to reflect—the triumph of advocacy over accuracy. I have
particular reference to Reid v. CovertTM8 a hard-fought and indeed bitterly-
contested litigation in which a good many of the Government's assertions
concerning the facts as to civilians accompanying the armed forces abroad
proved susceptible to successful contradiction 189—but only because of the
happenstance that, by reason of military experience and associations, I was
in a position to have knowledge of those facts. Inasmuch as my clients
ultimately prevailed, the foregoing observations are not subject to the
discount normally applicable to post-mortem recriminations made by the
licked lawyer. But I shudder to think what the position of a litigant similarly
situated would have been, whose counsel, however more talented he may
have been in every other respect, still chanced not to have had that
specialized knowledge.
185 See in this connection Newman, Government and Ignorance—A
Progress Report on Publication of Federal Regulations, 63 Harv. L. Rev.
929. See also, for a regulation not published in the Federal Register,
Seagrave v. United States, 131 C. Cls. 790, 128 F. Supp. 400.
186 E.g., material showing the administrative practice to recognize the
right of a claimant to maintain an independent action after the President
had rejected his claim under the Trading with the Enemy Act, supplied at
the Court's request in Supplemental Memo for the Respondents, No. 325,
Oct. T. 1941 (Rodiek v. United States, 315 U. S. 783, affirming by
equally divided court 117 F. 2d 588 and 120 F. 2d 760 (C.A.2) (the
Hackfeld case). See also note 189, infra.
187 As Chief Justice Warren said to the American Law Institute
regarding the 1954 revision of the Supreme Court's Rules, "Another
objective was completeness and to that end there are included in the
revision a number of subjects not covered by the old rules. If our aim in
this regard has been achieved counsel need not resort to textbooks nor be
reliant on the clerk's office for guidance to the extent theretofore
necessary." Quoted 68 Harv. L. Rev. at 91. For the condition obtaining
earlier, see id. at 36, and 38.
188 354 U. S. 1, withdrawing earlier opinions at 351 U. S. 470 and 487.
189 Here are just a few of the assertions involved.
(a) The Government pointed to the presence abroad of over 23,000
American citizen-employees accompanying the armed forces, and said,
"All these civilians are in foreign countries because the United States
needs them there for military reasons." U. S. Supp. Br. on Rehearing, 23-
24.
The fact was that the reason for the presence of so many civilians was
budgetary rather than military, since the annual cost of a civilian
employee is normally considerably less than that of a man in uniform.
Citations substantiating the fact: H.R. Rep. 1545, 83d Cong., 2d sess., p.
16; Sec. 720 of the Defense Appropriation Act of June 30, 1954, c. 432,
68 Stat. 337, 354; Department of the Army Appropriations for 1956,
Hearings before * * * * Subcommittee of the House Committee on
Appropriations, 84th Cong., 1st sess., pp. 4, 74, 296-297, 459-463, 1124-
1126; Army Information Digest, April 1955, p. 47; Department of the
Army Appropriations for 1957, Hearings, &c, 84th Cong., 2d sess., pp.
156, 316-318.
(b) The Government argued (Point IIB, U. S. Supp. Br. 57-61) that "As
to offenses which are not crimes under the law of the foreign state, but
are crimes only under American military law, the alternative to court-
martial jurisdiction is no trial at all."
The fact was that the Department of Defense employed over 76,000
nonAmerican civilians in foreign countries, and that it contracted with
foreign countries for the services of 275,000 additional non-American
civilians. U. S. Civil Service Comm., Federal Employment Statistics
Bull., Oct. 1956, p. 9; 103 Cong. Rec. 667-670. Since these 350,000
foreigners were plainly not subject to trial by American court-martial,
why would security and discipline be safe from them but in jeopardy
from the 23,000 Americans if the latter were not subject to American
military law?
(c) The Government argued (U. S. Supp. Br. 25-26) that "All civilians
who accompany the armed forces overseas are so closely identified with
those forces as to be indistinguishable from them for all practical
purposes."
The fact was that under the NATO and NATO-like arrangements the
United States had already conceded to the receiving states primary
jurisdiction over all crimes committed by civilian dependents. Art. VII
(3) (a) and (b), NATO Status of Forces Agreement (TIAS 2846). In other
words, the Government itself had solemnly recognized a distinction
between the several groups involved. (In its Reply Brief on Rehearing, p.
68, note 47a, the Government said that its negotiators had sought primary
jurisdiction over dependents, but had failed to obtain it. A more lame
excuse for failure to disclose a significant point would be difficult to
duplicate.)
 Section 59. Use of essentially historical materials.
—Mr. Justice Holmes, who more than most judges before or since
understood both the value and the limitations of historical learning,
remarked on different occasions that "historic continuity with the past is not
a duty, it is only a necessity," 190 and that "It is revolting to have no better
reason for a rule than that it was so laid down in the time of Henry IV." 191
Legal history in its purely antiquarian aspects will have but few uses for
the lawyer. But since there are so many terms in the Constitution of the
United States that would be meaningless without a thorough grounding in
the common law,192 and since constitutional law accordingly presupposes
an understanding of the common law,193 historical materials, including the
earliest cases, may sometimes be controlling, will generally be helpful—
and will always be suggestive.
A number of instances of the effective use of such materials come to
mind. Undoubtedly the classic instance of a change of decision in
consequence of more accurate historical knowledge was Vidal v. Girard's
Executors,194, where the Supreme Court modified its earlier decision in
Baptist Ass'n v. Hart's Executors195 and upheld the charitable trust
established by Stephen Girard's will, on the strength of then recent
publications of the Record Commissioners of England which demonstrated
that the English Court of Chancery had entertained jurisdiction over
charitable trusts long before the Statute of 43 Elizabeth I.196
190Holmes, Learning and Science, in Collected Legal Papers, 138,
139. See also Law in Science and Science in Law, id. 210, 211: "* * *
continuity with the past is only a necessity and not a duty."
191Holmes, The Path of the Law, in Collected Legal Papers, 187. See
United States v. Dege, 364 U. S. 51, which turned on the applicability of
the quotation in the text.
192
See, in this connection, as required reading, the illuminating
comments of Jackson, J., concurring, in D'Oench, Duhme & Co. v.
Federal Deposit Ins. Corp., 315 U. S. 447, 465, 470-471.
193 "# * * jjjg provisions of the Constitution are not mathematical
formulas having their essence in their form; they are organic living
 institutions transplanted from English soil. Their significance is vital not
formal; it is to be gathered not simply by taking the words and a
dictionary, but by considering their origin and the line of their growth."
Gompers v. United States, 233 U. S. 604, 610 (per Holmes, J.).
194 2 How. 127.
195 4 Wheat. 1.
But there are modern examples also. In United States v. Wood 197 the
question was whether Congress could constitutionally provide, consistently
with the Sixth Amendment's guaranty of trial "by an impartial jury," that
Government employees not shown to be actually biased might sit on juries
in criminal cases in the District of Columbia. An earlier case in point
apparently barred the way.198 But the Government's brief, which collected
and discussed all the early English authorities on the point, some of them
from the era of black-letter folios,199 demonstrated that King's servants
were not ineligible per se as a matter of common law. The Supreme Court
was persuaded by these authorities, and disapproved its earlier decision.200
In the Haupt treason case,201 the basic question was whether the
constitutional command that "No Person shall be convicted of Treason
unless on the Testimony of two Witnesses to the same overt Act" 202
required that "Testimony" to be eyewitness testimony, or "direct testimony,"
or whether, if the latter, it excluded any testimony that as a matter of
ordinary speech might be considered circumstantial. In order to resolve this
question, the Government's brief traced the two-witnesses requirement in
treason cases back to the Statute of 7 & 8 Will. Ill, c. 3, which settled that
requirement in the English law for 250 years,203 and took up and discussed,
from the proceedings set forth in Howell's State Trials, the rulings under
that statute in English treason trials antedating the American Revolution. It
then turned to the earliest American trials on the same point. The
Government argued, on the basis of these historical materials, that the
constitutional requirement did not render insufficient testimony that
required some interpretation; 204 and the Supreme Court agreed.
196 por an interesting instance of a State decision turning on historical
fact, see Dumbauld, A Manuscript from Monticello: Jefferson's Library
in Legal History, 38 A.B.A.J. 389.
 197 299 U. S. 123.
198 Crawford v. United States, 212 U. S. 183.
199 All the matter in law French was, however, duly translated into
English in the Government's brief. See Brief for the United States, No.
34, Oct. T. 1936.
For cases where the opinion of a modern court relies upon and quotes
from the Year Books in the original black-letter law French, see Dyson v.
Rhode Island Company, 25 R. I. 600, 57 Atl. 771, and Stevens v. Union
Railroad Company, 26 R. I. 90, 58 Atl. 492. The Rhode Island reports,
according to local tradition, had to have a new font of type set on this
occasion; the National Reporter System compromised on plain roman,
plus some typographical dashes and flourishes.
See Winfield, The Chief Sources of English Legal History (1925) 172,
n. 5, for modern English instances of citations from the Year Books.
200 -phe Wood case is still law, although expressions in later decisions
have questioned the soundness—and fairness—of its result. See Frazier
v. United States, 335 U. S. 497; Dennis v. United States 339 U. S. 162;
Morford v. United States, 339 U. S. 258. See also the comments in
Goebel, Constitutional History and Constitutional Law, 38 Col. L. Rev.
555, especially at 576-577.
201 Haupt v. United States, 330 U. S. 631.
202 U. S. Const., Art. Ill, Sec. 3.
Resort to the reports in Howell's State Trials was likewise had in the
Harris search and seizure case,205 to show that a search of premises
incident to an arrest represented an existing and widespread practice in
England that was unaffected by Lord Camden's ruling in Entick v.
Carrington 206—and reference was made to reports in the American State
Trials to show that the practice had never theretofore been deemed affected
by American constitutional provisions.207 The Supreme Court agreed,
although, as has already been noted in the preceding chapter (Section 30),
later decisions since then may well have undermined the present authority
of the Harris case. Indeed, there have been later decisions which appear to
suggest that the very concept of Due Process of Law is now deemed to
include a constitutional guaranty of privacy.208
203 Yhe two witness requirement was repealed by the St. 8 & 9 Geo.
VI, c. 44 (The Treason Act, 1945), which seems to have been passed to
reach the case of Lord Haw Haw. See J. W. Hall, ed., Trial of William
Joyce, pp. 12-14, 16. Joyce was brought to England from Germany the
day after the Treason Act, 1945, received Royal assent. Cf. Joyce v.
Director of Public Prosecutions, [1946] A.C. 347.
204 See Brief for the United States, No. 49, Oct. T. 1946, at 57-98, set
forth at pp. 350-369 of the earlier version of this work.
205 Harris v. United States, 331 U. S. 145.
206 1 9 How. St. Tr. 1029.
207 Trial of Patrick Hart, 26 How. St. Tr. 388, 396; Trial of Henry and
John Sheares, 27 How. St. Tr. 255, 321; Trial of Arthur Thistlewood, 33
How. St. Tr. 682, 811-812; Trial of James Ings, 33 How. St. Tr. 957,
1047; Trial of Levi and Laban Kenniston, 14 Am. St. Tr. 237, 244
(Mass.); Trial of Richard P. Robinson, 12 Am. St. Tr. 426, 446 (N. Y.) ;
Trial of John C. Colt, 1 Am. St. Tr. 455, 469 (N. Y.) ; Trial of Rev.
George W. Carawan, 6 Am. St. Tr. 514, 533 (N. C.); Trial of Emma
Cunningham, 5 Am. St. Tr. 90, 123 (N. Y.). For the modern English law
on the point, see Dillon v. O'Brien, 20 L. R. Ir. 300, 16 Cox C. C. 245;
Elias v. Pasmore, [1934] 2 K. B. 164.
However, even when they do not find their way into the decision or even
into the ratio decidendi of the decision, historical materials are at least
suggestive and hence helpful to the advocate. I found this to be so in the
case of Wade v. Hunter,TM which involved the right of the Army to try a
soldier by a second courtmartial after the partially tried case had been
withdrawn from the first court-martial when the tactical situation—in this
instance the final advance into Germany in the spring of 1945—made it
impracticable to continue the original trial.
The question was whether the second trial improperly subjected Wade to
double jeopardy, and the case turned largely on the difference between the
provisions of the Fifth Amendment, "nor shall any person be subject for the
same offense to be twice put in jeopardy of life or limb," and those of the
then 40th Article of War, "No person shall, without his consent, be tried a
second time for the same offense * * * ." 210
Clearly, under the remaining portions of Article of War 40, Wade had not
been "tried"; 211 had he, however, been "put in jeopardy"? The Supreme
Court had early ruled that the Fifth Amendment did not preclude a second
trial in a criminal case after the first trial had terminated in a disagreement
by the jury.212 But the lower courts in more recent cases had been applying
a rather mechanical rule, to the effect that "jeopardy" attached once
evidence was heard,213 or even after the jury had been sworn, in a situation
where the prosecutor failed to have his witnesses present.214 An early case
was most helpful in resolving this apparent conflict; there Mr. Justice
Washington, who had been a contemporary of the Framers, had said,
208See McDonald v. United States, 335 U. S. 451, 453; Wolf v.
Colorado, 338 U. S. 25, 27-28; cf. Clark, J., concurring in Irvine v.
California, 347 U. S. 128, 138-139. See also Elkins v. United States, 364
U. S. 206.
209 3 3 6 U. S. 684, affirming 169 F. 2d 973 (C.A. 10).
21010 U.S.C. [1926-1946 eds.] § 1511. The words quoted in the text
were derived from the original formulation in Article of War 87 of 1806,
2 Stat. 369.
211 "# *- * t,ut no proceeding in which an accused has been found
guilty by a court-martial upon any charge or specification shall be held to
be a trial in the sense of this article until the reviewing and, if there be
one, the confirming authority shall have taken final action upon the
case."
212 United States v. Perez, 9 Wheat. 579.
213Clawans v. Rives, 104 F. 2d 240 (App. D. C.) ; McCarthy v. Zerbst,
85 F. 2d 640 (C.A. 10) . See, however, for a broader view, Pratt v. United
States, 102 F. 2d 275 (App. D. C.).
214 Cornero v. United States, 48 F. 2d 69 (C.A.9).
* * * we are clearly of opinion, that the jeopardy spoken of in this article
[Fifth Amendment] can be interpreted to mean nothing short of the acquittal
or conviction of the prisoner, and the judgment of the court thereupon. This
was the meaning affixed to the expression by the common law. * * * the
moment it is admitted that in cases of necessity the court is authorized to
discharge the jury, the whole argument for applying this article of the
constitution to a discharge of the jury before conviction and judgment is
abandoned, because the exception of necessity is not to be found in any part
of the constitution; and I should consider this court as stepping beyond its
duty in interpolating it into that instrument, if the article of the constitution
is applicable to a case of this kind. We admit the exception, but we do it
because that article does not apply to a jeopardy short of conviction.215
The Wade case was decided, both in the Tenth Circuit and by the
Supreme Court, on the scope of the necessity exception and not on any
interpretation of "jeopardy," but I found the early decisions extremely
suggestive and helpful when I briefed and argued the case in the
intermediate court.216
Right here I will digress to draw the attention of brief-writers to the mine
of material available in the Federal Cases—the old circuit court decisions
that antedate the Federal Reporter. Many of them, of course, are of only
antiquarian interest today. But others are highly authoritative, for two
reasons. First, they reflect the constitutional views of judges whose lives,
frequently, were contemporaneous with the framing and ratification of the
Constitution. Second, they were in large measure the work of the Supreme
Court justices riding circuit, and so are regarded as more authoritative than
the run of what today one finds in F. 2d. To a surprising degree, decisions in
the Supreme Court, even today, rely or even turn upon what one of the
worthies of old said or decided while circuit riding.217
215
United States v. Haskell, 4 Wash. C. C. 402, 410-411, Fed. Case
No. 15321, 26 Fed. Cas. at 212 (C.C.E.D.Pa.). See also United States v.
Watkins, 2 Cranch C. C. 441, 570, Fed. Case No. 16649, 28 Fed. Cas. at
479 (C.C.D.C.).
210Extensive research since then has disclosed that Presidents Monroe
and J. Q. Adams, both of whom witnessed the adoption of the Bill of
Rights, considered cases of double jeopardy at military law wholly apart
from, and without any reference to, the Fifth Amendment. See my paper
 on Courts-Martial and the Bill of Rights: The Original Practice, 72
Harv. L. Rev. 1, 266, at 272277.
The present law, Article 44 (c) of the Uniform Code of Military
Justice, now 10 U.S.C. § 844 (c), may or may not involve a legislative
overruling of the Wade case. Cf. Sen. Rep. 486, 81st Cong., 1st sess., at
20. The provision in the current Manual for Courts-Martial, U. S. 1951,
^[ 56b, is a magnificent straddle.
A mass of historical materials was likewise adduced in Reid v. Covert218
to throw light on two questions. One of these concerned the origins of the
consular jurisdiction, a search that extended into deep antiquity; the
problem was the evaluation of the weight of In re Ross;21" see pp. 157-158,
supra. The other question concerned the extent to which court-martial
jurisdiction had in fact been exercised over civilians in England and in the
United States in the late Eighteenth Century. That inquiry required resort to
unpublished opinions and to records of trial in the National Archives.220
History is important and indeed sometimes controlling in constitutional
litigation, essentially because, as the Supreme Court has several times said,
"We do not write upon a clean slate." 221 But if the advocate's presentation
of history is to be of any value to the tribunal, it must be both accurate and
reliable. The kind of "history" that passes muster before the ladies of a local
genealogical group seeking to be reassured regarding the virtues of their
forbears can hardly be expected to overwhelm opposing counsel who has
even a modicum of historical appreciation, let alone persuade a
sophisticated tribunal. And the lawyer dealing with historical materials
must constantly be on guard against the dangers of "aftermindedness," 222
of attributing to the past ideas not formulated until the present.223
217 Mitchell v. Trawler Racer, Inc., 362 U. S. 539, 543-545, 556;
United States v. Isthmian S. S. Co., 359 U. S. 314, 320; Bartkus v.
Illinois, 359 U. S. 121, 160; Abbate v. United States, 359 U. S. 187, 193;
Green v. United States, 356 U. S. 165, 186; Green v. United States, 355
U. S. 184, 202-204; Costello v. United States, 350 U. S. 359, 362-363;
Quinn v. United States, 349 U. S. 155, 168; Bisso v. Inland Waterways
Corp., 349 U. S. 85, 101-103; National City Bank v. Republic of China,
348 U. S. 356, 358, 365; United States v. Morgan, 346 U. S. 502, 507,
509-510, 515; United States v. Real Estate Boards, 339 U. S. 485, 490-
 491; Farrell v. United States, 336 U. S. 511, 513, 522, 523; United States
v. Summerlin, 310 U. S. 414, 417-418.
218 354 U.S. 1.
219 140 U.S. 453.
220 The briefs for the relators in Kinsella v. Singleton, 361 U. S. 234,
and Wilson v. Bohlender, 361 U. S. 281, likewise reflected extensive
references to and quotations from manuscript materials in the National
Archives, in the Library of the U. S. Military Academy at West Point,
and in the Library of the Historical Society of Pennsylvania at
Philadelphia.
221 Green v. United States, 356 U. S. 165, 187; Lee v. Madigan, 358 U.
S. 228, 232; Abbate v. United States, 359 U. S. 187, 190.
When a court, particularly the Supreme Court, declares the law, all are
bound thereby. But judges have no such authority with respect to history.
Mr. Justice Jackson, in one of his most incisive judicial comments said, 'We
are not final because we are infallible, but we are infallible only because we
are final." 224 That observation may well be true as to law (including therein
constitutional law), but in the field of history neither the Supreme Court nor
any other tribunal has similar authority; in that realm a judicial opinion has
neither finality nor infallibility.
The truth of historical assertions depends on facts and on facts alone, as
these are evidenced and established by actual documents. And where the
advocate in his role of historian finds that historical assumptions in earlier
opinions are not well grounded, and he then presents new or additional
evidence that requires a contrary conclusion, he is not asking the court to
overrule itself on a question of law (compare Sections 35 (e) and 53, supra)
; he is urging the tribunal to arrive at a different conclusion on a more
complete and hence different record—just as the Supreme Court did in
Vidal v. Girard's Executors/25 in United States v. Wood,226 and in Erie R.
Co. v. Tompkins.221

Section 60. Use of noncase materials.

 —The successful advocate is not limited to decisions and statutes, the
latest case turned up in the digests, the most recent regulation spawned by a
restless bureaucracy, or the last amendment adopted by the legislature. He is
free to seek other materials to buttress his arguments, and will frequently
find it helpful to do so. There will be discussed below, not at all
exhaustively, the employment of noncase materials as authorities.
222
Cam, Introduction, in Selected Historical Essays of F. W. Maitland
(1957) xix.
223 "But if Maitland brought law to bear on history, he brought history
to bear on law. Again and again he emphasized the danger of imposing
legal concepts of a later date on facts of an earlier date—a common fault,
before his time, of the majority of legal historians and of many
constitutional historians. We must not read either law or history
backwards. We must learn to think the thoughts of a past age—'the
common thoughts of our forefathers about common things.' 'We must not
attribute precise ideas or well denned law to the German conquerors of
Britain.' It is as if 'we armed Hengist and Horsa with machine guns or
pictured the Venerable Bede correcting proofs.'" Id. at xi.
224 Brown v. Allen, 344 U. S. 443, 532, 540 (concurring opinion).
225 2 How. 127.
226 299 U. S. 123.
227 304 U. S. 64; see Section 62 at p. 199, below.
(a) Economic and sociological materials; the Brandeis brief. The classic
instance of the use of economic and sociological materials in constitutional
litigation, half a century ago, was in Muller v. OregonTM which sustained
the validity of a state statute limiting the hours of labor for women. There
Mr. Louis D. Brandeis, as he then was, filed a brief in which he collected a
list of similar state and foreign statutes; "extracts from over ninety reports
of committees, bureaus of statistics, commissioners of hygiene, inspectors
of factories, both in this country and in Europe, to the effect that long hours
of labor are dangerous for women, primarily because of their special
physical organization"; and "extracts from similar reports discussing the
general benefits of short hours from an economic aspect of the question,"
229 all in support of the proposition that the legislation in question bore a
reasonable relationship to the public health and safety—admittedly valid
exercises of the police power. His success in that case, and the approbation
that the brief received in the unanimous opinion written by that rugged
apostle of laissez faire, Brewer, J., led to increasing use of the same
technique in other cases.230
Perhaps the most expert development of what accordingly came to be
known as the Brandeis brief was presented in Adkins v. Children's
Hospital2*1 and the Gold Clause252 and AAA cases,233 though it may be that
those decisions, equally with the later ones in West Coast Hotel Co. v.
Parrish,234, and the several decisions upholding the National Labor
Relations Act 235 and the Social Security Act,236 were influenced less by
what was collected in the winning briefs than by other less strictly scientific
considerations. As one of losing counsel in the 1936 New York minimum
wage case 237 remarked in 1937, after the West Coast Hotel decision had
been announced, "Better a poor argument after election than a good one
before it." Nonetheless, the Brandeis brief still has a considerable field for
usefulness, even in today's climate of constitutional opinion. Thus, in the
cases that refused enforcement to restrictive covenants,238 the Attorney
General and Solicitor General of the United States filed a comprehensive
brief that included full references to discussions of the social and economic
effects of such covenants. And in the case upholding the constitutionality of
the anti-communist affidavit provision of the TaftHartley Act,239 the brief in
support of the statute collected a vast mass of nonlegal materials showing
the reasonable basis for the view that neither the policies of the National
Labor Relations Act nor the security interests of the country would be
fostered by extending the benefits of the latter Act to labor organizations
whose officers were Communists or supporters of Communist-dominated
organizations.
228 2 08 U. S. 412.
229 208 U. S. 420, note.
230
E.g., Bunting v. Oregon, 243 U. S. 426; Stettler v. O'Hara, 243 U.
S. 629; Adkins v. Children's Hospital, 261 U. S. 525; see Bikle, Judicial
Determination of Questions of Facts Affecting the Constitutional Validity
of Legislative Action, 38 Harv. L. Rev. 6; Freund, On Understanding the
Supreme Court, 86-92.
231 261 U. S. 525. In this instance, the brief was notably unsuccessful.
"It is said that great benefits have resulted from the operation of such
statutes, not alone in the District of Columbia but in the several States,
where they have been in force. A mass of reports, opinions of special
observers and students of the subject, and the like, has been brought
before us in support of this statement, all of which we have found
interesting but only mildly persuasive." 261 U. S. at 560, per Sutherland,
J. Compare Powell, The Judiciality of Minimum-Wage Legislation, 37
Harv. L. Rev. 545.
232 Norman v. Baltimore ir O. R. Co. and United States v. Bankers
Trust Co., 294 U. S. 240; Nortz v. United States, 294 U. S. 317; Perry v.
United States, 294 U. S. 330; dissenting opinion, sub nom. Gold Clause
Cases, 294 U. S. at 361.
The brief for the Government in United States v. Bankers Trust Co.,
Nos.
471-472, Oct. T. 1934, contained some 50 pages of economic materials
(pp. 18-68) under these headings:
"2. There was a reasonable basis for Congressional determination that
the gold clause is contrary to public policy, inconsistent with our present
monetary system, and an obstruction to the exercise by Congress of its
monetary and other powers.
"B. The gold clause is an obstruction to the exercise of the powers of
the Congress, as shown by its bearing upon recent legislation designed to
cope with the monetary and financial crisis."
233 United States v. Butler, 297 U. S. 1.
At pp. 179-227 of the Government's brief (No. 401, Oct. T. 1935) it
was argued that "The expenditures authorized by the Agricultural
Adjustment Act were soundly designed to promote the general welfare."
The Appendix to the brief contained, inter alia, statements by Secretaries
of Agriculture concerning the problems of agricultural surpluses (pp. 70-
76); annual average indexes of "real" pay rolls in specified industries in
relation to 1929 (pp. 77-78) ; and foreign laws (1) limiting production of
agricultural commodities,
(2) affecting agricultural prices on acquisition of agricultural
commodities,
(3) imposing taxes upon the processing of agricultural commodities to
raise revenue for the aid of agriculture and other purposes, and (4)
providing for subsidies or other payments in aid of agriculture (pp. 79-
100).
234 300 U. S. 379.
235 Labor Board v. Jones if Laughlin, 301 U. S. 1; Labor Board v.
Fruehauf Co., 301 U. S. 49; Labor Board v. Clothing Co., 301 U. S. 58;
dissenting opinion, sub nom. Labor Board Cases, 301 U. S. at 76;
Associated Press v. Labor Board, 301 U. S. 103; Washington Coach Co.
v. Labor Board, 301 U. S. 142.
At pp. 40-69 of the Government's brief in the Associated Press case
(No. 365, Oct. T. 1936), the contention that "Subsections (1) and (3) of
Section 8 of the [National Labor Relations] Act, as applied to interstate
enterprises, bear a reasonable and direct relation to the protection of
interstate commerce from the burden of industrial strife, and
consequently are a valid exercise of the commerce power," was
documented by a mass of nonlegal materials, collected by economists of
the Labor Board, who were named.
Similar materials, similarly collected, were set out at pp. 21-31 of the
Government's brief in the Jones & Laughlin case (No. 419, Oct. T.
1936), under the heading, "The burden and injury to interstate commerce
resulting from industrial strife."
236 Carmichael v. Southern Coal Co., 301 U. S. 495; Steward Machine
Co. v. Davis, 301 U. S. 548; Helvering v. Davis, 301 U. S. 619.
In the Steward Machine Co. case (No. 837, Oct. T. 1936), which
involved the validity of Title IX of the Social Security Act, it was argued
that "This taxing statute was enacted because of the drain which
unemployment had made, and was likely to make in the future, upon the
revenues of the nation." The nonlegal material, with due
 acknowledgments for research assistance, was collected at pp. 9-29 of
the Government's brief, under the heading, "The circumstances which
'furnish the occasion for the exercise of power' conferred upon Congress
by Article I, Section 8, Clause 1, of the Constitution." The quotation was
from the opinion of the Court, per Hughes, C. J., in the Minnesota
mortgage moratorium case, Home Bldg. it L. Assn. v. Blaisdell, 290 U. S.
398, 426. Additional economic statistics were set out at pp. 64-77 of a
separately bound Appendix.
(b) Defense against improper use of economic and sociological
materials. Most imitations are inferior to the original, and numerous
imitators of the Brandeis technique have perverted it to improper uses,
using noncase materials in situations where they are irrelevant, and drawing
those materials from unreliable sources. In any situation where an advocate
is faced with what can only be called a pseudo-Brandeis brief, his best—
indeed, his only —defense is to emphasize the limitations that surround the
use of sociological and economic authorities.
First of all, the Brandeis brief is properly used only in situations where
there is wide scope for legislative judgment, where "the guaranty of due
process * * * demands only that the law shall not be unreasonable, arbitrary
or capricious, and that the means selected shall have a real and substantial
relation to the object sought to be attained." 240 In the words of Professor
(now Mr. Justice) Frankfurter, written in 1931,
In Helvering v. Davis (No. 910, Oct. T. 1936), in support of the
contention that "The old age benefit payments contemplated by Title II
will promote the general welfare of the United States," the nonlegal
materials, duly acknowledged, were collected at pp. 49-74 of petitioners'
brief under the heading, "The problem of old-age dependency."

237 Morehead v. New York ex rel. Tipaldo, 298 U. S. 587.

238 Shelley v. Kraemer, 334 U. S. 1; Hurd v. Hodge, 334 U. S. 24.
239 American Communications Assn. v. Douds, 339 U. S. 382.
Until [Brandeis'] famous brief in Muller v. Oregon, social legislation was
supported before the courts largely in vacuo—as an abstract dialectic
between "liberty" and "police power," unrelated to a world of trusts and
unions, of large-scale industry and all its implications. In the Oregon case,
the facts of modern industry which provoke regulatory legislation were, for
the first time, adequately marshalled before the Court. It marks an epoch in
the disposition of cases presenting the most important present-day
constitutional issues.241
Otherwise stated, the Brandeis brief is appropriate "where constitutional
grants and limitations of power are set forth in general clauses, which afford
a broad outline," but not "when the provisions of the Constitution, in grant
or restriction, are specific, so particularized as not to admit of construction."
242

Thus, while general concepts of reasonableness are sufficient to sustain

many aspects of State criminal procedure against attack based on the Due
Process clause of the Fourteenth Amendment— e.g., substituting
information for indictment,243 providing a jury of less than 12 in criminal
cases 244 or providing for a majority verdict in such cases,245 permitting the
prosecution to comment on the defendant's failure to testify,246 granting the
prosecution an appeal in criminal cases,247 introducing new concepts of
double jeopardy,248 and permitting the use of illegally obtained evidence 249
— no amount of demonstrable reasonableness would sustain similar Federal
action in the face of the specific and explicit limitations of the Bill of
Rights. It is for this reason that the existence of foreign legislation, which
assists in establishing the reasonableness of domestic legislation challenged
on due process grounds,250 failed completely to persuade in three recent
cases of military jurisdiction, which turned on specific constitutional
prohibitions.251 In that field, reasonableness in the abstract is of no help; 252
resort must be had to history and practice.253
240 Nebbia v. New York, 291 U. S. 502, 525.
241
Frankfurter, Mr. Justice Brandeis and the Constitution, 45 Harv. L.
Rev. 33, 37, reprinted in Frankfurter, ed., Mr. Justice Brandeis, 49, 52.
242
Both quotations are from Home Bldg. ir L. Assn. v. Blaisdell, 290
U. S. 398, 426, per Hughes, C. J.
243 Hurtado v. California, 110 U. S. 516.
 244 Maxwell v. Dow, 176 U. S. 581.
245 Jordan v. Massachusetts, 225 U. S. 167, 176.
246 Twining v. New Jersey, 211 U. S. 78; Adamson v. California, 332
U. S. 46.
247 Palko v. Connecticut, 302 U. S. 319.
248 Brock v. North Carolina, 344 U. S. 424.
249 Wolfx. Colorado, 338 U. S. 25.
Second, the Brandeis type of brief perverts the most deeply held
convictions of its originator when it is used to assemble data showing or
tending to show that the law under consideration is unwise or unsound;
such arguments are only appropriate when addressed to the legislature.254
250 See notes 229-233, supra.
251 Thus, in United States v. Cooke, 336 U. S. 210, where the Court
held that a discharge followed by reenlistment barred trial by court-
martial in the subsequent enlistment for an offense alleged to have been
committed in the earlier one, the Government cited English statutes to
the contrary (Resp. Br., No. 231, Oct. T. 1948, p. 13, n. 4), but without
avail. In Toth v. Quarles, 350 U. S. 11, which held unconstitutional Art.
3(a), UCMJ (now 10 U.S.C. § 803 (a)), the provision that purported to
make discharged servicemen amenable to military law in respect of
serious offenses committed while in service for which they could not be
tried in any American court, state or federal, the Government similarly
invoked, though persuading only the dissenting justices (350 U. S. at 29-
31, note 11), British, Canadian, Australian, and New Zealand statutes
similar to Art. 3(a). See Resp. Br., No. 3, Oct. T. 1955, pp. 29-30, note
13. Likewise, in Reid v. Covert, 354 U. S. 1, which held unconstitutional
the military trials of civilian dependents charged with capital offenses,
the majority of the Court was not persuaded by the fact that the British
Parliament had recently extended military jurisdiction to civilians
accompanying the forces abroad (U. S. Supp. Br. on Rehearing, Nos. 701
and 713, Oct. T. 1955, p. 50). See, however, the opinion of Harlan, J.,
354 U. S. at 71, note 9.
 252 Cf. Harlan, J., concurring in Reid v. Covert, 354 U. S. at 66-67.
253 See, e.g., Ex parte Quirin, 317 U. S. 1 (extensive consideration of
the history and practice of trying offenders the laws of war by military
tribunals) ; District of Columbia v. Colts, 282 U. S. 63 (what petty
offenses fall outside the constitutional guaranty of jury trials?); District
of Columbia v. Clawans, 300 U. S. 617 (same); cf. United States v.
Wood, 299 U. S. 123, discussed above, Section 59, p. 182.
254 "jf tjje proponents of union-security agreements have confidence
in the arguments addressed to the Court in their 'economic brief,' they
should address those arguments to the electorate. Its endorsement would
be a vindication that the mandate of this Court could never give."
Frankfurter, J., concurring, in A. F. of L. v. American Sash Co., 335 U. S.
538, 553 (and related cases, see p. 542, note).
Those cases (Nos. 27, 34, and 47, Oct. T. 1948) involved the validity
of state statutes outlawing the closed shop, i.e., forbidding agreements to
employ only union members. On behalf of the appellants, there was filed
a document entitled on its cover "Economic Brief of Appellants." Inside
the cover was a treatise, over a hundred pages in length, prepared by an
A. F. of L. economist, entitled "The Closed Shop and Union Security."
Appendix E to this treatise, which was thus included as a part of the
"Economic Brief" submitted to the Court, was a lengthy law review
article on the precise constitutional issues raised!
Third, the materials adduced must be authoritative, representing matters
of general knowledge that are comprehended within the basis on which the
Court in Muller v. Oregon 255 first accepted the Brandeis brief, viz., "the
state of the art" in patent law.256 Consequently ex parte statements by
officials whose assertions of power are being challenged do not qualify,
particularly when formulated post litem motam. If counsel feels that the
existence of facts justifying challenged action must be established, he
should prove those facts at the trial, where the officials can be
crossexamined.257 These fairly obvious considerations were overlooked in
Reid v. Covert 258 when the Government on rehearing attempted to prove
"The specific practical necessities * * * which justify court-martial
jurisdiction over civilian dependents overseas" 259 by adducing letters from
overseas commanders. It should hardly occasion surprise that the showing
thus made failed to convince a majority of the Court.260

255 2 08 U. S. 412, 419.

256 "In patent cases counsel are apt to open the argument with a
discussion of the state of the art. It may not be amiss, in the present case,
before examining the constitutional question, to notice the course of
legislation, as well as expressions of opinion from other than judicial
sources. In the brief filed by Mr. Louis D. Brandeis for the defendant in
error is a very copious collection of all these matters, an epitome of
which is found in the margin."
257 In the Hawaiian martial law cases (Duncan v. Kahanamoku, 327 U.
S. 304), the Government produced its military witnesses, Adm. Nimitz
and Lt. Gen. Richardson, at the habeas corpus hearing in the district
court. See No. 14, Oct. T. 1945, R. 1006-1078; No. 15, id., R. 55-56,
341-301.
258 354 U.S. 1.
259This was one of the points on which the Court requested argument
when it granted the rehearing. 352 U. S. 901.
260 "Unlike the kind of reports that Mr. Louis D. Brandeis brought to
the attention of the Court through his famous brief in Muller v. Oregon, *
* * the letters exhibited in these cases represent simply expressions by
those whose powers are involved. * * *
"But the letters brought forward in the present case are subject to other
infirmities also. They are ex parte, and, as will be pointed out below in
detail, they bristle with points that are left in doubt or else not covered at
all, points on which cross-examination would have elicited pertinent
information. * * *
"Moreover, the letters now pressed on the Court as determinative of
the contested issue are, all too obviously, post litem motam; their
approach is keynoted by the first sentence of the first letter printed: 'The
news that the United States Supreme Court has agreed to reconsider the
question of the amenability to military law of dependents accompanying
 military personnel overseas is most disturbing.' No doubt similar
communications could be obtained from lawyers, constitutional scholars,
and, for that matter, from dependent wives overseas, to the effect that last
June's decisions were even more disturbing. But we hardly think that
such a course of counter-picketing the inside of the courthouse * * *
would be in any degree helpful." Supp. Br. on Rehearing for Appellee
and Resp., Nos. 701 and 713, Oct. T. 1955, pp. 141-142.
In all fairness, however, it can hardly be said that the "practical
necessities" issue was one that would have occurred to counsel when the
proceedings were instituted. Moreover, since the relief sought was habeas
corpus, the statutory requirement that "The court shall summarily hear and
determine the facts" 261 made it obviously impracticable to remand the two
cases to the respective district courts where each had originated for the
purpose of conducting lengthy hearings. In earlier constitutional litigation,
where the nature of the background facts necessary to sustain the assailed
statute was obvious, the Government had indeed developed those facts
through witnesses at each trial.262
(c) Scientific materials. On occasion there arises a point that is
susceptible of effective treatment with the use of strictly scientific, nonlegal
materials. The Anne Johnson case 263 is an apt illustration.
There narcotic agents, attracted by the smell of burning opium, entered
petitioner's room without a warrant. She was subsequently indicted and
convicted for violations of the narcotic laws. She argued that odors alone,
uncorroborated by other information, could not be evidence sufficient to
constitute probable ground for any search; and she cited numerous cases in
support of that contention.264 The Government urged that smoking opium
had a distinctive and unmistakably identifiable odor, quoting not only from
the testimony in the case but also from encyclopedias, pharmacopoeias, and
similar disinterested sources of information. The Court held that odors
alone might well constitute probable cause,265 but went on to decide, four
justices dissenting, that in the circumstances the officers were not entitled to
proceed without a warrant.

261 28 U.S.C. § 2243.

 262 "I should add at this point that the practice of the government has
by no means been limited to the placing of such data in the briefs. In
many of the most important constitutional cases, the material has actually
been introduced into the record. Sometimes this has been done by calling
expert witnesses—government economists or outside economists—or by
introducing into the record publications of responsible authorities. This
was done, for example, in the Guffey Coal Act case [Carter v. Carter
Coal Co., 298 U. S. 238], where voluminous testimony was taken
regarding the history of labor disturbances in the coal industry and the
effect on the volume of shipments and competitive conditions in the
industry. It was done in the PWA cases [Alabama Power Co. v. Ickes,
302 U. S. 464], where testimony was taken regarding studies made by
the Bureau of Labor Statistics on the effectiveness of a public works
program in the relief of unemployment. It was done at great length in the
omnibus TVA case [Tennessee Electric Power Co. v. TVA, 306 U. S.
118], where a galaxy of engineers—military, civil and hydraulic—
testified on both sides concerning the usefulness of the TVA projects for
navigation, flood control, and national defense." Freund, On
Understanding the Supreme Court, 89-90. Professor Freund was on the
staff of the Solicitor General of the United States when each of the cited
cases was briefed and argued.
263 Johnson v. United States, 333 U. S. 10.
Here again, when the case is going to turn on scientific facts, it is
preferable—and safer—to lay the foundation at the trial, through live
witnesses subject to cross-examination (as was done in Anne Johnson), and
then to use the materials cited in the brief by way of supplement. This was
the course followed in the recent case of Flemming v. Florida Citrus Exch.,
266 upholding an order of the Secretary of Health, Education and Welfare

that removed from the certified list of "harmless and suitable for use in
food" a coaltar color used for many years in coloring oranges. The bulk of
the scientific testimony was adduced at the administrative hearing, and the
brief supplemented the record thus made with additional citations from
pharmaceutical journals that had been before the Congress when the
governing statute was enacted.
 Similarly, in a recent English case, the question concerned the legitimacy
of a child born 340 days after the husband left to go overseas with the
Army.267 The evidence of a distinguished doctor —the President of the
Royal College of Obstetricians and Gynaecologists—as to the advances
made in the science of gynaecology over the preceding twenty years,
convinced the judge that the child could not possibly have been legitimate,
notwithstanding earlier cases, based on the earlier state of knowledge, to the
contrary.268
264Taylor v. United States, 286 U. S. 1; United States v. Kronenberg,
134 F. 2d 483 (C.A. 2); Cheng Wai v. United States, 125 F. 2d 915 (C.A.
2); United States v. Kaplan, 89 F. 2d 869 (C.A. 2); United States v. Lee,
83 F. 2d 195 (C.A. 2); United States v. Schultz, 3 F. Supp. 273 (D. Ariz.);
United States v. Tom Yu, 1 F. Supp. 357 (D. Ariz.).
265 3 3 3 U. S. at 13.
266 3 58 U. S. 153.
267 M-T v. M-T, [1949] P. 331.
In other words, precedents otherwise binding can lose their force under
the impetus of advances in scientific knowledge just as well as under the
impetus of advances in historical knowledge.

Section 61. Encyclopedias; collections of annotated cases.

—It is not belittling the value of encyclopedias or of the several
collections of annotated cases to urge that they should be used primarily to
orient the lawyer in unfamiliar fields of law, or to supply him with citations
to cases and with leads for further research—but that they should not
generally be relied upon or cited as authorities. A proper exception would
be in situations where law libraries are limited or generally inaccessible.
Normally—and certainly before the Supreme Court of the United States or
any other Federal appellate court—the careful advocate will never refer to
such publications in his briefs except to write, "The cases are collected in ."
Whenever or wherever library facilities are limited, the lawyer in the
field must follow the soldier in the field: he must do the best he can with
what he has. But in the larger cities, or in the vicinity of the larger law
school libraries, the situation is different; there the warning above is
applicable.
Some readers will ask, Why this insistence on such a limited use, in the
face of the undoubted fact that some courts of last resort cite these works in
their opinions? The real reason, basically, is this: encyclopedias and
annotations are written by lawyers who, though honest and diligent, are
neither in practice nor in law teaching. Some are undoubtedly able, others
are little better than legal hacks. For myself, I admire their industry, and I
value it highly, as witness the price law offices pay for the fruits thereof.
But I do not regard their analysis of the cases as authority, and certainly a
survey of the reports indicates that courts of the highest standing do not do
so either. I regard any competent lawyer's signature on a brief as being at
least as authoritative as these gentlemen's own frequently anonymous say-
so.
Consequently, I profit by their labors, which shorten my own
correspondingly. But having been fortunate enough always to have access
to excellent library facilities, I do not and never have cited these works to
any court, save always as a reasonably reliable compilation of the
decisions.269
268 Gaskill v. Gaskill, [1921] P. 425; Hadlum v. Hadlum, [1949] P.
331.

Section 62. Use of law review materials.

—In 1915, Dean Wigmore, in the preface to the second edition of the
then Supplement to his monumental—and immortal—treatise on Evidence,
deplored the prevailing tendency of courts to overlook the treasures locked
in the pages of legal periodicals, and to cite a secondor third-rate textbook
in preference to a first-rate article in a law review.270 Those strictures were
not repeated in the second edition of his Treatise, published in 1923; by
1930 or thereabouts "the conspiracy of silence" had pretty well been
dissolved; 271 and today, the pendulum has swung far in the opposite
direction.272 Indeed, lawyers who would not dream of citing encyclopedias
or annotated reports or third-rate textbooks in their briefs seem to think that
they will appear to be pretty learned fellows when they refer to and rely
upon expressions of opinion in the law reviews.
Law review materials fall into two groups: the leading articles, invariably
signed, and the student notes and comments, which, certainly in the older
law reviews, are frequently and perhaps generally unsigned.
So far as the student notes are concerned, the brief-writer will, by and
large, be well advised to use them as case-finders and as sources for his
own ideas, rather than as expressions of authority to be cited to the courts.
A little reflection will show the reason why. After all, your task as an
advocate is to persuade a court of more or less learned and more rather than
less elderly judges to decide your case in your favor. They are not likely to
be persuaded by what some lads on a law review have said. Sometimes the
judicial reaction to a law review citation is essentially one of amusement, as
for example the remark (probably not wholly apocryphal) attributed to Mr.
Justice Holmes: "I don't mind when the lads on the Law Review say I'm
wrong, what I object to is when they say I'm right." Sometimes the reaction
is one of impatient annoyance; I have heard just precisely that kind of
comment, in open court, from one of the most distinguished of Federal
judges (directed, I should hasten to add, at my opposition) .273 And on
occasion the matter goes beyond that, as witness the testy comments in one
of the late Mr. Justice Butler's last dissents:
269 In addition to the usual collections of annotated cases, advocates in
the Federal courts should be aware of the wealth of useful annotations on
points of Federal constitutional and statutory law available in the
Lawyers' Edition series of the United States Reports.
270 Pp. v, vi.
271 See Maggs, Concerning the Extent to Which the Law Review
Contributes to the Development of the Law (1930) 2 So. Cal. L. Rev.
181; Cardozo, Introduction to Selected Readings on the Law of Contracts
(1930), pp. vii, ix: "Certain, in any event, it is that the old prejudice is
vanishing. Within the last ten or fifteen years the conspiracy of silence
has been dissolving, with defections every year more numerous and
notable."
 272See, as to the increasing frequency of law review citations by the
courts, Judge Goodrich's paper, Law School and Law Teacher—1952, 5
J. Legal Educ. 7, 13-14.
The opinion also cites, footnote 7, selected gainsaying writings of
professors,—some are lawyers and some are not—but without specification
of or reference to the reasons upon which their views rest. And in addition it
cites notes published in law reviews some signed and some not; presumably
the latter were prepared by law students.274
True, student notes are nowadays frequently cited by the courts,275 and
the views expressed above are not in any sense the consequence of sour
grapes. I too have tooted on The Bugle, and one note that I committed while
in school, which criticized two Supreme Court decisions,278 was twice cited
by that Court—as it qualified the one 277 and overruled the other.278 I
strongly suspect, however, that, in those instances as in the others, the
student note citations were added by the justices' law clerks, by ways of
encouragement to their former colleagues still at the school.
At any rate, I would urge that, except in rare instances, student notes
should not be cited as authority. They should be used, however, for the
ideas they reflect, and as case-finders.279 Such use will save the brief-writer
much labor at the research stage, since law review notes and comments are
very apt to contain references to cases that simply do not turn up in the
digests.280
273 This is particularly so when a student note questions a firmly
settled principle; such a suggestion "is not in our opinion to be seriously
weighed against the long established view * * *." Angilly v. United
States, 199 F. 2d 642, 644 (C.A. 2).
274 O'Malley v. Woodrough, 307 U. S. 277, 298.
275 E.g., United States v. Witkovich, 353 U. S. 194, 201; Zwack v.
Kraus Bros, if Co., 237 F. 2d 253 (C.A. 2); see note 272 supra; cf. Clark,
J., dissenting, in Niles-Bement-Pond Co. v. Fitzpatrick, 213 F. 2d 305,
313 (C.A. 2). These are examples only.
276
Note, Aftermath of the Supreme Courts Stop, Look, and Listen Rule
(1930) 43 Harv. L. Rev. 926.
 277Pokora v. Wabash Ry. Co., 292 U. S. 98, 106, n. 4, limiting
Baltimore if O. R. R. v. Goodman, 275 U. S. 66.
27SErieR. Co. v. Tompkins, 304 U. S. 64, 74, n. 7, overruling Swift v.
Tyson, 16 Pet. 1.
Leading articles, on the other hand, stand on a different footing. At worst,
they represent the opinions of individual lawyers, and hence should have,
for purposes of citation, at least the same value as an ephemeral textbook
written by some hack in a law publisher's stable and duly bound in buckram
or fabrikoid. And, at best, depending in each instance on the stature and
reputation of the author, they may well be authoritative.
Thus, Mr. Charles Warren's article, New Light on the History of the
Federal Judiciary Act of 1789fsi undermined the authority of Swift v.
Tyson/82 and was in large measure responsible for Erie R. Co. v. Tompkins?
*3 Rarely has a single bit of historical research so significantly influenced
our law. Another classic example of a bit of original legal thinking, one that
opened up an entirely new field of law, was the celebrated Warren and
Brandeis article on The Right to Privacy.2** Although published over 70
years ago, it is still being cited by courts today.285 Those are perhaps the
two most striking examples, though there have been other recent instances
of substantial judicial reliance placed on the reasoning and the research set
forth in law review articles.286 It is proper to add, however, that leading
articles in law reviews are more respected as authority when they reflect the
results of scholarly researches or the views of members of rule-making
committees as to the objects sought to be attained by those rules than when
they simply set forth the opinions of individual lawyers, either with a
client's axe to grind or else rearguing in professional publications the cases
they have lost in the courts.
279 1 am not ashamed to acknowledge that, on numerous occasions,
referring to law review notes has saved me much work in collecting
cases, and has turned up worthwhile ideas that advanced my own
arguments.
280
The American Digest System, even now, does not include
"Conflict of Laws" as a digest topic. And the heading "Administrative
Law and Procedure," which is included in the Fifth and subsequent
 Decennial Digests, did not appear currently until 1948. See 4 General
Digest (2d Series) .
281 37 Harv. L. Rev. 49.
282 1 6 Pet. 1.
283 304 U. S. 64.
284 4 Harv. L. Rev. 193 (1890). See Nizer, The Right of Privacy: A
Half Century's Developments, 39 Mich. L. Rev. 526 (1941); Feinberg,
Recent Developments of the Law of Privacy, 48 Colum. L. Rev. 713
(1948).
285 E.g., Leverton v. Curtis Pub. Co., 192 F. 2d 974 (C.A. 3); Ettore v.
Philco Television Broadcasting Corporation, 229 F. 2d 481 (C.A. 3);
Jenkins v. Dell Publishing Company, 251 F. 2d 447 (C.A. 3).
286 See, for example, Frankfurter and Landis, Power of Congress over
Procedure in Criminal Contempts in "Inferior" Federal Courts—A Study
in Separation of Powers, 37 Harv. L. Rev. 1010. This article, sharply
critical of the decision in Toledo Newspaper Co. v. United States, 247 U.
S. 402, was cited by and certainly influenced the Court in Nye v. United
States, 313 U. S. 33, 47, when it overruled the Toledo case.

Section 63. The next step in brief-writing.

—I shall assume, at this point, that your basic research has been
completed, and that you have made useful notes covering your materials.
I will not undertake to make suggestions for note-taking; that is a matter
which depends entirely on individual habits and temperament. The
standards that follow, however, are universally applicable.
(a) Be accurate; you will waste a great deal of time and effort if you have
to go back to get the exact wording of a title or citation that you took down
in sloppy fashion the first time.
(b) Make your notes complete enough to be helpful to you, but don't
waste your time in doing mere copywork that a stenographer can do more
effectively and more economically.
 (c) Don't jot down on the same sheet of paper references to unrelated
matters; to do that means an infinite amount of shuffling through papers to
find a single citation. Your time is more valuable than scratch-paper, even at
today's inflated prices for office supplies.
(d) Don't rely on your notes to the exclusion of the reports, particularly as
to the leading cases cited. You will have to read and reread those, no matter
how extensive your notes may be.
Next, having gone over your notes, and having already analyzed your
case thoroughly, it is time to outline your argument. This involves, among
other things, a resolution of the problem of which points to argue first; see
Section 34, above. It involves also a formulation of the argumentative
headings for the several points in your argument; see Section 30, above.
And it involves also, very definitely, a breaking down of your main points
into their supporting subsidiary points.
See also Fairman, Does the Fourteenth Amendment Incorporate the
Bill of Rights? The Original Understanding, 2 Stanf. L. Rev. 5, which
demonstrated the historical soundness of Adamson v. California, 332 U.
S. 46, and has since been cited in support thereof. E.g., Bartkus v.
Illinois, 359 U. S. 121, 124.
See also, for varying degrees of reliance on leading articles in law
reviews, the following recent cases: Machinists v. Gonzales, 356 U. S.
617, 622-623; Local 140 Security Fund v. Hack, 242 F. 2d 375 (C.A. 2);
Sunbeam Corp. v. Civil Service Employees' Coop. Assn., 187 F. 2d 768
(C.A. 3) ; Mason City ir Clear Lake R. Co. v. Imperial Seed Co., 152 F.
Supp. 145 (N. D. Iowa).
The only general rule universally applicable at this juncture is the
warning that, if the outline is faulty, the thinking is faulty. Consequently, if
the draft outline won't wash, your case needs further and clearer analysis,
and you will have to labor over it some more. Work over it, slave over it if
need be, turn to other matters to clear your head if the deadline allows you
that luxury. But keep at it until the outline is sound. Then—and only then—
are you ready to write.

Section 64. Write consecutively.

 —There is always a strong temptation to leave the difficult or the less
important point for the end—to toss in the jurisdictional argument later, or
to do the easy points first and to reserve the difficult one until you get into
the swing of writing. That is the easy way, no doubt about it—and a very
natural one; years ago, I frequently succumbed to it. But I found that when I
did, my briefs would acquire a lopsided twist that no amount of future
editing would ever quite eradicate.
So, having learned this also, again the hard way, I pass it on: always write
consecutively. Start with Point One and follow through to the conclusion.
Go cross-country, as it were, over the easy terrain as well as the rocky
ground. And keep right on going.
I don't mean that it is necessary to stop and interrupt the train of your
thought while looking up some largely ornamental citation, or to compose a
long but somewhat tangential footnote, or even to fill in a little paragraph of
text that is going to involve a lot of additional research. Those are the little
fringes and tassels, the buttons and bows of brief-writing, that can safely be
postponed. They can wait, provided they are not basic. As to the basic
argument, however, you must go straight ahead, and with as much steam as
you can muster.
Later, after the basic text has been written, and, after submission to
partners or colleagues for comment or criticism, it has been revised and
where necessary rewritten, you can relax and proceed to fill in the gaps and
supply the additional citations that, had you stopped for them earlier, would
have distracted you and disturbed the continuity of your writing.
Inevitably, though, it is just those last little trifles that are bound to—and
do—take a disproportionate amount of time. They are the touches that
require you to leave your office for the more extensive library facilities of
Bar Association or courthouse. It has been my experience that the last few
citations and the last few footnotes always keep me running breathlessly
around the library, fighting the deadline—and delay my meeting it.

Section 65. Write the Summary of Argument last of all.

— After the Argument proper has been written and revised, and not
before, is the time to write the Summary of Argument. See Section 37 (a),
above, for suggestions as to what the Summary should contain. It is well,
also, to cite therein a few of the leading cases discussed and relied upon in
the body of your Argument, to serve as shorthand guideposts and landmarks
for the court. (It was Mr. Justice Reed, when Solicitor General of the United
States, who insisted that the Summary of Argument in Government briefs
should do so.) And, I repeat, the Summary should summarize what is said
in the Argument; it should not go off on a tack—or a frolic—of its own.
As a practical matter, the normal procedure under the pressure of
deadlines is to let the Argument go to the printer, and later, when it comes
back in galley proof, to insert the Summary of Argument before the entire
brief is returned to the press for paging.

Section 66. Finally, check!

—Check every citation, quotation, and record reference. Check every
citation, quotation, and record reference! CHECK EVERY CITATION,
QUOTATION, AND RECORD REFERENCE! Regardless of your own intrinsic
accuracy, errors are bound to creep into your manuscript. Sometimes it is
your fault and at other times it is your stenographer's, but mistakes will slip
in either way. The name of a case will be incorrectly rendered, digits in a
citation will become transposed, a word in a quotation will be garbled, a
line will be left out of a quotation, a record reference or two or three will be
completely wrong. Most usually the final typed manuscript will contain a
combination of these common errors.
So—when you get the first set of printer's proofs, whether galley or page,
check each citation (and every part of it), every record reference, and every
quotation whether from record or from decision, against the original
reports and the original record! This is a must. It is standard operating
procedure in the U. S. Solicitor General's Office and on the better law
reviews. (The former employs two full-time checkers who do nothing else.)
You, as a private practitioner—or as a lawyer in some other Government
law office —cannot afford to do less.
If the cost of proof corrections is a factor that must be watched, it is
better to have a copy of your final manuscript checked against the original
documents; then to enter the corrections on the master copy that goes to the
press; and finally to read back every citation and quotation from the proofs
against the master copy of the manuscript. This sequence helps keep down
the number of corrections requiring resetting of type; most printers use
linotype, with the result that a single misplaced digit in a citation requires
an entire line of type to be reset.
It should be noted parenthetically that the most effective checking is that
done by someone other than the brief-writer, not because checking is a
chore to be passed down the line, but because of the demonstrable
psychological fact that the author's eye will see the author's thought rather
than what is typed or printed. That is why most people are better
proofreaders on the other fellow's stuff. Consequently, the admonition here
set down—"check" —means, preferably, "have someone else check."
The same counsel is applicable to cross-references. These cannot be
inserted until a complete set of page proofs is available, and, in the first
instance, must be supplied either by the actual briefwriter or by his No. 1
assistant. But, like everything else in the brief, these cross-references must
be checked, again preferably by some one whose critical eye will not be
softened either by wishful thinking or by pride of authorship.
To continue: Whenever there have been corrections made in any set of
proofs, be sure to check the next succeeding set of proofs, not only to see
whether the first corrections have been made, but also to ascertain whether
any additional errors have crept in. (They generally have.)
Finally, when you receive the completed briefs from the printer, all clean
and nicely bound, don't rush the required number over to the clerk of court
in the same happy mood of creative pride with which you distribute cigars
to your friends consequent upon the birth of issue. Curb your impulse; sit
down and read one copy consecutively. ("Read" here, pre-eminently, means
"have someone else read.")
Why? Because, almost inevitably, in the process of correcting the errors
noted on the final proofs, new errors will have been made. A most annoying
kind of new error, and unfortunately a not too uncommon one, is the
transposition of entire lines of type. The fact of the matter is that
typographical errors are an unavoidable form of human fallibility, which
simply cannot be entirely stamped out, regardless of the efforts made.287
That being so, it is incumbent on every lawyer to have his finished briefs
read carefully, very carefully, before he files them with the court. On the
strength of a long and frequently sad experience, I emphasize this final
caution; indeed, I cannot emphasize it too strongly.
And if you find slips? Correct them with pen or pencil, and file as
corrected. And, of course, when the final copy is way off, the printer is
bound to correct his own slips; the customer pays only for proof changes
that he makes himself.
At any rate, after the completed briefs have been checked, corrected if
necessary, and finally filed, you can relax. If you have been working really
hard on the case, you will undoubtedly feel a tremendous let-down at that
point. What you do thereafter, before it is time to prepare for the oral
argument, will depend largely on such otherwise irrelevant matters as your
temperament, your state of health, your doctor's orders, and the local option
situation in the particular Federal district.
287 "The most baffling device of the imp [of the perverse] is to cause
a new error in the process of correcting an old one. This residuary
misprint is one against which there is no complete protection. When
General Pillow returned from Mexico he was hailed by a Southern editor
as a 'battle-scarred veteran.' The next day the veteran called upon him to
demand an apology for the epithet actually printed, 'battle-scared.' What
was the horror of the editor, on the following day, to see the expression
reappear in his apology as 'bottle-scarred.'" Koopman, The Perversities
of Type, in The Booklover and His Books, 152, 157.
 CHAPTER V

THE FINER POINTS OF BRIEF-WRITING

Section 67. Introductory.

—This chapter deals with the minutiae of brief-writing, with those details
wherein a good brief differs from one not so good. The discussion of some
of these details may appear to pertain to trifles, but, as has aptly been
remarked, it is the trifles that make perfection—and perfection is no trifle.
There will also be included in this chapter a discussion of the problems
peculiar to reply briefs and to briefs amicus curiae; and I shall once more
stress, from still another approach, the necessity for absolute accuracy in
citations and record references.

Section 68. Citations; number of citations.—

One of the best, if not the best, single article on appellate arguments is
still the late John W. Davis's The Argument of an Appeal.1 In one of the
introductory paragraphs of that paper, there appears the following:
I assume also that the briefs are not overlarded with long quotations from
the reported opinions, no matter how pat they seem; nor over-crowded with
citations designed it would seem to certify to the industry of the brief-maker
rather than to fortify the argument. A horrible example of this latter fault
crossed my desk within the month in a brief which, in addition to many
statutes and text-writers, cited by volume and page no less than 304 decided
cases, a number calculated to discourage if not to disgust the most
industrious judge.
I chanced to be in the audience when the foregoing was first delivered, at
the Association of the Bar of the City of New York in 1940—and, as it
happened, the "horrible example" referred to was the Government's brief in
the Northern Pacific reargument,2 a case I had argued against Mr. Davis
just a week or so previously. Together with the late Judge E. E. Danly and
some others, I had sweated over that brief all summer long. At any rate,
when I saw the speaker immediately after his lecture, he seemed
nonplussed, and the following conversation took place:
1 Davis, The Argument of an Appeal, 26 A.B.A.J. 895.
2 United States v. Northern Pacific Ry. Co., 311 U. S. 317.
W: I'm sorry you didn't like our brief.
D: Well, I did think you cited too many cases.
W: If I were inclined to be critical of your production, I should say that
you cited too few cases.
D: Had it occurred to you that we had too few cases which we could cite?
All of which passed off very pleasantly and amiably. I was never too
much concerned about the criticism, because after all— as a friend of mine
noted when he first saw the paper in print—the reargument was decided in
my favor! And the fact that Mr. Davis wrote the Foreword to the first
version of the present work was surely an indication that he was never too
seriously upset by my countercriticism.
As a general proposition, of course, it goes almost without saying that it
is better to cite and discuss a few leading and controlling decisions than to
assemble an encyclopedic collection within the covers of a single brief.
This has been recognized for centuries.3 But there are cases and cases, and
what may be an excess of citations in one situation may be far too few in
another. The matter is entirely relative, and one cannot safely be dogmatic
about absolute numbers.
Consider the Northern Pacific case: it involved the final adjustment of
the land grant to the Northern Pacific Railway and its predecessors, a grant
of some forty million acres of land—almost equal to the aggregate area of
the six New England states. The litigation in question had been specifically
directed by Congress, after an investigation that had lasted five years.4
Some nine years more elapsed before the U. S. District Court entered an
interlocutory decree. Meanwhile Congress had authorized an appeal from
that decree, direct to the Supreme Court,5 because the litigation was simply
too complex for ordinary appellate procedures. The case was first argued in
the Supreme Court in the spring of 1940, some ten years after the
proceeding had been brought. Three hours were allowed on each side for
oral argument instead of the usual one hour.6 After that, the Court set the
case down for reargument on its own motion, and asked for argument on
questions that had not been taken up and on assignments of error that had
not been urged at the original argument.7
3 "In those days few cases in law were cited, but very pithy and
pertinent to the purpose, and those ever pinch most; and now in so long
arguments with such a farrago of authorities, it cannot be but there is
much refuse, which ever doth weaken or lessen the weight of the
argument." 10 Co. Rep. (1826 ed.) xxi-xxii.
4 Act of June 25, 1929, c. 41, 46 Stat. 41. The investigation was
authorized by the Joint Resolution of June 5, 1924, c. 267, 43 Stat. 461;
the report of the Joint Committee of Congress that conducted the
investigation appears in S. Rep. 5, 71st Cong., 2d sess.
5 Act of May 22, 1936, c. 444, 49 Stat. 1369.
On reargument, the Government filed a brief extending to 295 pages.
That brief argued the questions involved by invoking analogies that seemed
apposite, and stressed what Government counsel felt was the disregard of
settled rules of law on the part of the master whose opinion had been
approved by the district court. It was necessary to buttress the analogies
with citations so that they would not appear to be mere assertions, and in
order to show the number of decisions which, it was contended, the decree
below had ignored. Having regard to all of these factors—the complexity of
the issues, the circumstance that the Court was obviously in doubt and
frankly seeking guidance, and the number of subsidiary points and
principles that needed to be explored and developed— I still think now, as I
thought in 1940, that the number of citations was not excessive, and that,
notwithstanding the acknowledged eminence of the critic, the stricture
quoted above was not justified in the particular instance, especially since
the Court ultimately reserved decision on some of the fundamental issues as
to which there was an equal division of opinion. (Any reader of the
foregoing is, of course, free to disagree with me—provided he will first
read the 848 pages of the printed record, the numerous bulky exhibits that
were not printed, the 460 pages of briefs filed on the original argument, the
appendix of relevant statutes running to 156 pages, the 397 pages of briefs
filed at the reargument, and the 53-page opinion at 311 U. S. 317.)
 Section 69. More about the number of citations.
—The normal or usual case, of course, does not require nearly so detailed
a documentation, and the brief-writer should adapt his citations to the
problem he is facing.
The following standards will cover the usual situations, but they are
standards only, not ironclad rules.
6 Journal, U. S. Sup. Ct., Oct. T. 1939, p. 177.
7310 U. S. 615. Six additional hours were allowed for the reargument.
Journal, U. S. Sup. Ct., Oct. T. 1940, p. 29.
(a) It is, by and large, unwise to overload one's brief with citations. In this
connection it is well for the brief-writer to keep in mind a question I once
heard a Supreme Court Justice ask counsel during argument: "Mr. X, I see
that on page ab of your brief you cite a lot of cases for that proposition.
Give me the two most important ones that you want me to read." 8
(b) Don't weaken a really pat citation that is on all fours by including a
lot that bear only tangentially on the issue; and if you have a square
holding, don't add the stray dicta from other cases. Possible exception:
when the holding is an old one, it may be helpful to add a modern or fairly
recent reaffirmation, even though dictum in the later case—to show that the
proposition on which you are relying is still recognized as law.
(c) In Federal appeals, to the extent that you are dealing with Federal law
of general application, whether constitutional or statutory, your citations are
best restricted to a few leading decisions of the Supreme Court, preferably
the most recent, plus possibly a few late decisions in the court where you
are actually arguing, to demonstrate that tribunal's application of the
governing principles involved.
(d) Always adapt your citations to the court and to the question. Thus, in
any Federal court, Supreme Court citations are authoritative (with only a
very narrow and infrequent exception, see p. 108, above) . And, in any
Federal court, its own decisions are likewise authoritative, and will be
preferred to those of other Federal courts, even of those of coordinate
jurisdiction.
 When you are in the Supreme Court, on other than constitutional
questions, decisions of the lower Federal courts differ in value. It is of
course always helpful to be able to point out that the rule for which you are
contending has the support of all or nearly all of the eleven circuits, and in
that event it is well to give citations from all of them. Where, however, the
case is in the Supreme Court to resolve a conflict between circuits, all that
counts is the reasoning of the Supreme Court decisions on which you rely.
And when the Supreme Court is called upon to determine a constitutional
issue of essentially first impression, then, necessarily, the decisions of the
lower Federal courts are virtually valueless as authorities, except possibly
when they are expressions of the giants of old riding circuit (see Section 59,
above), or, occasionally, when an admired contemporary has spoken under
circumstances giving his views peculiar weight.9
8 Compare the Eighth Circuit's Rule 11 (b) Fourth, requiring, in the
statement of points to be argued, "the cases which are considered to be
most apposite and convincing, not exceeding four in number, to be
printed in boldface type."
The District of Columbia Circuit has just added the following to its
Rule 17(b) (3):
"Counsel are requested to place in the left margin of the Table of
Cases an asterisk or asterisks to mark those cases or authorities on which
counsel chiefly rely and to add at the end of the Table:
"*Cases or authorities chiefly relied upon are marked by asterisks."
(e) In Federal appeals, State cases are generally valueless or worse on
strictly Federal issues (compare Section 49, above), and are helpful in only
a very limited number of situations:
(1) Where a Federal question, whether civil or criminal, is unsettled, and
where there has been a uniform treatment of the same point in the State
courts.10
(2) Where a question of evidence is involved.11
(3) Where the case is in the Supreme Court on review from the highest
court of the State, and you seek to demonstrate that the same State court had
previously given recognition to the federal right that you are asserting.12
 9E.g., Judge Learned Hand's opinion in United States v. Aluminum
Co. of America, 148 F. 2d 416 (C.A. 2), an antitrust appeal which came
before the Second Circuit by virtue of a special statute (now 28 U.S.C. §
2109; see also United States v. United States District Court, 334 U. S.
258) because, by reason of disqualifications, the Supreme Court could
not muster a quorum. Accordingly, the Supreme Court has said that
"That case was decided by the Circuit Court of Appeals for the Second
Circuit under unique circumstances which add to its weight as a
precedent" (American Tobacco Co. v. United States, 328 U. S. 781, 811),
and has treated it accordingly in later antitrust opinions.
10See, e.g., the use of State decisions in Morissette v. United States,
342 U. S. 246, a case dealing with the quantum and kind of criminal
intent requisite to conviction for a taking of Government property.
11 Under Rule 43 (a), F. R. Civ. P., evidence is admissible in a Federal
civil case if admissible in the courts of the State where the Federal court
is held. Under Rule 26, F. R. Crim. P., the admissibility of evidence in
Federal criminal cases depends on the "principles of the common law as
they may be interpreted by the courts of the United States in the light of
reason and experience." For recent applications, see Hawkins v. United
States, 358 U. S. 74, and Wyatt v. United States, 362 U. S. 525.
12See Section 35 (d), supra, for the use made in Williams v. Lee, 358
U. S. 217, reversing 83 Ariz. 241, 319 P. 2d 998, of the prior Arizona
case of Begay v. Miller, 70 Ariz. 380, 222 P. 2d 624.
(4) Where the question is secondary or essentially illustrative.13
(5) And, of course, in diversity cases where State law now governs.
(f) Where sheer weight of numbers is a point in itself, all that weight
should be used. For instance, whenever it is appropriate to emphasize the
settled nature of the rule relied upon, it is entirely in order to cite more
cases than when the particular settled rule was questioned neither by the
court below nor by your adversary.
Thus, in the Petrillo case,14 the Government's brief dealt with the
contention that in the absence of a separability clause there would be a
presumption of inseparability.15 The brief pointed out that such a
presumption was by no means conclusive— and went on to cite in a
footnote no less than 47 cases in which the Supreme Court had held statutes
severable despite the absence of a separability clause!
Similarly (see pp. 208-209, above), where it is considered necessary to
show not just that the rule in the Federal courts is such-and-such but that, in
fact, every circuit so holds, it is well that every one of the eleven circuits be
represented.
(g) You will need more citations where the question is one of first
impression or where you are undertaking to tidy up a confused field of law
or where the court below has disregarded settled law, than in a situation
where you are dealing only with the application of an earlier decision or
with a variant on a well-established rule.
Thus, in Williams v. Fanning,TM where the Supreme Court undertook to
settle the question whether, in injunction proceedings against a public
officer, the officer's official superior was an indispensable party—a matter
that, because of the apparent conflict between Gnerich v. Rutter17 and
Webster v. Fall18 on the one hand, and Colorado v. Toll19 on the other, had
been in hopeless confusion in the several circuits 20—the Government's
brief cited and classified all the decisions on the question. And in the
Douglas Chandler treason case,21 which came before a court that had never
in its history had occasion to consider that particular offense, both sides
presented voluminous authorities, the object being—in my judgment
properly so-—to lay before the tribunal every decision and every bit of
historical material that would assist in deciding the case. Thorough research
in such a situation lightens the court's labors rather than otherwise.22
13See, e.g., the use made of state cases in Wolf v. Colorado, 338 U. S.
25, in Bartkus v. Illinois, 359 U. S. 121, 135-136, and in the dissenting
opinion in Green v. United States, 355 U. S. 184, 198, 216-218.
14 United States v. Petrillo, 332 U. S. 1.
15
E.g., Williams v. Standard Oil Co., 278 U. S. 235; Electric Bond ir
Share Co. v. Securities & Exchange Commission, 303 U. S. 419.
16 332 U. S. 490.
17 265 U. S. 388.
 18 266 U. S. 507.
The question of how many cases to cite is an entirely relative one; it is all
a matter of proportion and emphasis. There is no one single "approved
solution" that can be laid down to fit every situation. The experienced brief-
writer soon senses when to cite many cases and when only a few. Like
Grandmother's famous recipe, you take a little of this and a pinch of that
and add enough of the other until the mixture seems just right.
In this connection, I should add that I always consider it a reflection on
my brief when the court's opinion cites a case in point that I did not cite to
them.23 After all, one purpose of any brief is to assist the appellate court by
pointing out the actual state of the decisional law.24 On occasion, judges are
sufficiently annoyed, when counsel neglect their homework, to make
pointed references to controlling decisions "apparently overlooked by
counsel," 25 or to the lack of essential allegations that both sides have failed
to notice in an indictment.26 Indeed, one of the most untidy areas in our law
today can be directly traced to the failure of counsel on both sides to invoke
a controlling decision.27
19 268 U. S. 228.
20
Most of the earlier cases are collected in 158 A.L.R. 1126. As there
appears, some circuits with a fine impartiality decided the point both
ways.
One perceptive commentator believes that the Supreme Court cases
since Williams v. Fanning still go off in all directions and perpetuate the
earlier confusion. 3 Davis, Administrative Law Treatise (1958) §27.08.
21
Chandler v. United States, 171 F. 2d 921 (C.A. 1), certiorari denied,
336 U. S. 918.
22 "We have been much aided by the industry and thoroughness of
Government counsel and of court appointed counsel for the defendant in
their researches on the case, and by the distinguished ability with which
they have marshaled their respective arguments." Id., 171 F. 2d at 924.
And see Cramer v. United States, 325 U. S. 1, 8, n. 9: "Counsel have
lightened our burden of examination of the considerable accumulation of
historical materials."
 23 In Henry v. Hodges, 171 F. 2d 401 (C.A. 2) , certiorari denied sub
nom. Henry v. Smith, 336 U. S. 968, I cited three cases for the
proposition that a statutory requirement qualified by words such as "if
available," "when it can not be avoided," and the like, was to be
construed as directory rather than mandatory, so that failure to comply
with the requirement did not invalidate the proceedings. Martin v. Mott,
12 Wheat. 19; Mullan v. United States, 140 U. S. 240; Swaim v. United
States, 165 U. S. 553. The Second Circuit added two additional citations
precisely in point, viz., Bishop v. United States, 197 U. S. 334, and Kahn
v. Anderson, 255 U. S. 1—which I took, then as now, as bespeaking
inadequate research on my part.
The discussion just above sufficiently demonstrates the vice of
overloading a brief with too many citations, but it is surely a more serious
criticism of counsel when the appellate court says in its published opinion
that "The so-called briefs, of two pages and one page respectively, * * *
have been of no help to us at all," 28 or when it remarks that "The
defendant's brief is unique in that it does not cite a single authority in
support of the contentions made." 29

Section 70. The ornamental citation.

—The temptation to toss in a bit of tangential learning or to button up a
train of thought with a pat quotation is frequently a very strong one. I know
it is that way in my own case, and I note below some instances of that
tendency—simply by way of illustration, and not at all, I should hasten to
add, to show what a very learned fellow I can be at times.
To the extent that the inclusion of an ornamental citation (or even a few
of them) does not interfere with or detract from the main stream of the
argument, indulgence in this particular form of vanity can do no harm; it
may even give one's brief an appealing overtone of erudition that a court
will respect. The first two examples noted below may qualify as
illustrations. Then again, the subject may be such that what might ordinarily
be considered merely ornamental citations turn out to be strictly utilitarian;
example (c), below, is an instance of such a situation.
 24 See the thoroughly unpleasant comments made in Thys Company v.
Anglo California National Bank, 219 F. 2d 131 (C.A. 9) at 133 and
passim.
"25 Yee Si v. Boyd, 243 F. 2d 203, 208 (C.A. 9); Phillips v. United
States, 243 F. 2d 1, 7 (C.A. 9).
26 United States v. Deutsch, 243 F. 2d 435 (C.A. 3).
27 After Johnson v. Zerbst, 304 U. S. 458, had substantially broadened
the traditional scope of collateral review by habeas corpus of convictions
in civilian courts, the Court in Hiatt v. Brown, 339 U. S. 103, considered
an instance of collateral review of a conviction by court-martial; neither
side cited Johnson v. Zerbst. When the question next arose, Johnson v.
Zerbst was cited but not discussed, and the justices divided—actually,
splintered—so that there was no opinion of the Court. Burns v. Wilson,
346 U. S. 137, and see particularly the opinion of Frankfurter, J.,
dissenting on denial of the petition for rehearing, 346 U. S. 844, 848-849.
I have discussed the present state of the law on this point in Courts-
Martial and the Bill of Rights: The Original Practice, 72 Harv. L. Rev. 1,
266, at 296-303.
28 Boufford v. United States, 239 F. 2d 841, 842 (C.A. 1).
29 Bell v. United States, 251 F. 2d 490, 494 (C.A. 8).
On occasion, too, the quest for the ornamental citation may turn up either
the winning case in point or at least one that will really harry the
opposition; see the two examples noted in (d), below. And finally there is
the ornamental citation or ornamental discussion that leads nowhere and
adds nothing, and is therefore bad. A few Federal judges, living and dead,
were given to this practice; examples appear at large in the reports; further
identification would be both invidious and unnecessary.
(a) In the Girouard case,30 already discussed in Sections 50 and 57
above, the Government brief stressed that, in view of the legislative history,
adoption of petitioner's view would involve the rewriting of an Act of
Congress. By way of sharpening the issue, the brief went on:
In view of this compelling legislative history, of Congressional action
and of highly significant Congressional inaction, the rule of the Schwimmer,
Macintosh, and Bland cases has become a statutory rule, having an
independent legislative basis, which, we submit, can be reconsidered only
by Congress, and which is not open for reconsideration or reexamination
here.
We need not stop now to inquire when and to what extent adherence to
the precept of stare decisis is either necessary or desirable. There is here no
question of common law, requiring resolution of the paradox that "law must
be stable and yet it cannot stand still," Pound, Interpretations of Legal
History, 1; cf. Cardozo, The Growth of the Law, passim. There is before this
Court no problem of reconciling situations which involve similar factual
patterns embroidered with varying niceties of legal expression, such as this
Court considered against an equivocal background of legislative history in
Helvering v. Hallock, 309 U. S. 106. The present case does not require a
reexamination of constitutional doctrine in the light of legislative
reenactments which necessarily question earlier judgments or decisions on
constitutional issues. See Helvering v. Griffiths, 318 U. S. 371, 400401,
discussed in Petitioner's Brief, pp. 33-34. Nor is there here any question of
either the power or the propriety of this Court's reexamination and
reconsideration of its prior constitutional determinations; we have
ourselves, supra, pp. 39-42, invited a reexamination of the constitutional
aspects of the Macintosh decision.
30 Girouard v. United States, 328 U. S. 61.
The proposition here is broader and bolder: It is that this Court rewrite an
Act of Congress. It is that this Court, by reconsidering the steps which led
to a result which Congress has since independently adopted, arrive at a new
result which Congress advisedly refused to adopt.
In the context, Pound and Cardozo were unquestionably ornamental
citations, but their inclusion did serve to add support to one of the steps in
the argument.
(b) Some dozen or so years ago, a soldier who had been badly wounded
in World War II sued the United States to recover just compensation for the
use of his body.31 The case is set out in the following excerpt from the
Government's brief in opposition to the petition for certiorari.
 STATEMENT
Petitioner, Edward C. Commers, was inducted into the military service
on October 19, 1942, pursuant to the provisions of the Selective Training
and Service Act of 1940, c. 720, 54 Stat. 885 (50 U.S.C. App. 301 et seq)
(R. 4) . Prior to that time he was earning, as a manual laborer, at least $200
per month (R. 8). After receiving his basic training he was assigned to the
6th Infantry Division of the United States Army and served with that
Division in various campaigns in New Guinea and the Philippine Islands
(R. 4-6). In these campaigns he received severe injuries and was afflicted
with malaria and other diseases and tropical maladies (R. 5-7). During his
service in the Army, from which he was discharged on August 6, 1945, he
was awarded two Silver Stars,* one Bronze Star Medal,f three Purple
Hearts,J and a Good Conduct Medal § (R. 4, 6, 16).
On March 26, 1946, petitioner filed an amended complaint in the District
Court of the United States for the District of Montana alleging that because
of the injuries and sicknesses which he had suffered during his Army
service he is unable to follow any substantial gainful occupation as a
manual laborer, and that it is reasonably certain that his disabilities will
continue in a totally disabling degree throughout his life (R. 7). He is now
receiving from the Veterans' Administration of the United States for his
disabilities the sum of $34.50 a month when he is not hospitalized and $20
a month when he is in a hospital (R. 8).
31Commers v. United States, 66 F. Supp. 943 (D. Mont.), affirmed,
159 F. 2d 248 (C. A. 9) , certiorari denied, 331 U. S. 807.
* Awarded for gallantry in action. See Army Regulations 600-45, 22
September 1943, par. 13.
f Awarded for gallantry in action, to recognize minor acts of heroism in
actual combat. Army Regulations 600-45, 22 September 1943, as
changed by Changes No. 3, 25 April 1944, par. 15i/£.
% Awarded for wounds received in action. Army Regulations 600-45,
22 September 1943, as changed by Changes No. 7, 14 July 1945, par. 16.
§ Awarded for exemplary behavior, efficiency, and fidelity. Army
Regulations 600-68, May 4, 1943.
 The petitioner prayed for a declaratory judgment holding in substance,
(1) that the taking of his body and earning power for use in the military
forces of the United States was a taking of private property for a public use;
(2) that the United States is obligated not only under the Fifth Amendment,
but as a matter of natural right, to make just compensation to petitioner and
all other veterans disabled in World War II; (3) that petitioner and all other
disabled war veterans are constitutionally entitled to try their claims for
bodily impairment in the district courts of the United States and to have the
jury trial guaranteed by the Seventh Amendment; (4) that the consent of the
United States to be sued upon the claims of its war disabled is implied from
the Fifth Amendment (R. 15-16).
The United States filed a motion to dismiss the complaint on the grounds
that it did not state a claim upon which relief could be granted and that the
court was without jurisdiction as the United States had not consented to be
sued in this manner (R. 17). The judgment of the District Court (R. 35)
granting the motion to dismiss was affirmed by the court below without
opinion (R. 48).

ARGUMENT
Petitioner contends that the admitted power of the United States to raise
armies by conscription (Pet. 21) is subject to the provision of the Fifth
Amendment that "private property" shall not be taken for public use without
just compensation, that any soldier whose "bodily integrity and earning
power have been consumed in the common defense" is entitled to
compensation therefor, and that such soldier may have the existence and
extent of his disabilities determined in the courts of the United States and be
"justly compensated therefor as a matter of constitutional right" (Pet. 7, 8).
Petitioner's contentions have a certain philosophical appeal, but that is
their only merit. Whatever may be the scope of the Fifth Amendment with
respect to property destroyed in the course of actual military operations
(United States v. Pacific Railroad, 120 U. S. 227) ,32 the short and
conclusive answer to petitioner's argument is that, since the ratification of
the Thirteenth Amendment, there has been no property right in a living
human body. And, while that Amendment ended slavery and all other forms
of involuntary servitude (Clyatt v. United States, 197 U. S. 207; Bailey v.
Alabama, 219 U. S. 219; United States v. Reynolds, 235 U. S. 133), it did
not terminate the numerous civic duties which require the citizen to devote
his labor and if need be, his life, to the service of the community. In those
categories are included the duty to render military service (Selective Draft
Law Cases, 245 U. S. 366), the duty to labor for a reasonable time on public
roads near his residence without direct compensation (Butler v. Perry, 240
U. S. 328), and the duty to assist the police to enforce the justice of the state
(Matter of Babington v. Yellow Taxi Corp., 250 N. Y. 14, per Cardozo, Ch.
J.).
32Since reaffirmed in United States v. Caltex (Philippines), 344 U. S.
149 (1952) . [Footnote not in original.]
This Court has several times pointed out the nature of the obligation of
military service. Jacobson v. Massachusetts, 197 U. S. 11, 29; Selective
Draft Law Cases, 245 U. S. 366, 378. In the latter case, Chief Justice White
said, in words which have frequently been quoted: "It may not be doubted
that the very conception of a just government and its duty to the citizen
includes the reciprocal obligation of the citizen to render military service in
case of need and the right to compel it."
The same thought is expressed in the Congressional declaration
contained in Section 1 (b) of the Selective Training and Service Act of
1940, 54 Stat. 885, 50 U.S.C. App. 301 (b): "that in a free society the
obligations and privileges of military training and service should be shared
generally in accordance with a fair and just system of selective compulsory
military training and service."
The basic fallacy of petitioner's view is that he confounds the nation's
right to compel the citizen's obligation to render military service with a
taking of property. Once that distinction is recognized, his entire case falls.
It may be a distinction which is historical rather than logical, but it is well
settled; and, here also, "Upon this point a page of history is worth a volume
of logic." New York Trust Co. v. Eisner, 256 U. S. 345, 349. Consequently
we do not deem it necessary to discuss the technical jurisdictional
infirmities of the present complaint, which are adequately disposed of in the
opinion of the District Court (R. 30-39).
 The citations of the Army Regulations governing the awards of the lad's
decorations were ornamental in the dragged-in-by-theears sense, but the
citations to the several instances of legally compelled services were
necessary to the argument. As to the final Holmes quotation—well, that was
just too pat to be omitted.
(c) An example of the mingling of a few ornamental citations with a good
many necessary ones was the portion of the Haupt treason brief that was
printed in the earlier version of this book.33
(d) Perhaps in some of the examples just cited the ornamental citations
were merely reflections of the brief-writer's more or less angular
personality; I must leave that to more objective judges than I. But every
once in a while the search for the ornamental citation pays off, and then it
compensates for and outweighs a good deal of what might otherwise be
simply a somewhat vulgarly ostentatious display of learning.
(1) One example in my practice was the Hackfeld alien property case,34
in which a vital question, and, in the end, the controlling one, was whether
Hackfeld had acquired citizenship in the then Republic of Hawaii through
the receipt of a Certificate of Special Rights of Citizenship issued under
Article 17 of the Constitution of that Republic.35 There were no reported
cases on the point, argument based on the constitutional provision itself had
ranged far and wide, and the Government was faced with an adverse ruling
of the Secretary of State that such a Certificate did confer citizenship.36
While in Hawaii taking depositions in the case in 1938, I had occasion to
discuss the matter with a number of eminent local practitioners, now
unfortunately all deceased, who assured me that the Hawaiian bar all
considered the Secretary's ruling clearly erroneous. These gentlemen had
been contemporaries of the Republic of Hawaii: Judge A. G. M. Robertson
was then the sole survivor of the Convention that had framed the
Constitution of that Republic, Judge W. L. Stanley had served on the bench
shortly thereafter, and Governor W. F. Frear had been a judge under
Monarchy, Provisional Government, and Republic alike and had moreover
been a member of the Commission that had drafted the Hawaiian Organic
Act.37 Surely the unanimous opinion of men such as these, to the effect that
the receipt of a Certificate of Special Rights of Citizenship did not confer
Hawaiian nationality, was weighty indeed—but how bring their views
before the U. S. District Court for the Southern District of New York?
33 Haupt v. United States, 330 U. S. 631. The portions of the
Government's brief in that case (No. 49, Oct. T. 1946) dealing with the
elements of the crime of treason and with the scope of the two-witness
requirement were set forth at pp. 342-370 of Effective Appellate
Advocacy.
34 United States v. Rodiek, 117 F. 2d 588 (C.A. 2), rehearing denied
with opinion, 120 F. 2d 760, affirmed by equally divided court, 315 U. S.
783. See also Rodiek v. United States, 100 C. Cls. 267.
35 Art. 17, Sec. 2: "Any person not a Hawaiian citizen, who took
active part, or otherwise rendered substantial service in the formation of,
and has since supported the Provisional Government of Hawaii, who
shall within six months from the promulgation of this Constitution
procure from the Minister of the Interior a certificate of such service, as
herein set forth; and who shall take an oath to support this Constitution
and the laws of the Republic so long as he shall remain domiciled in the
Republic, shall be entitled to all the privileges of citizenship without
thereby prejudicing his native citizenship or allegiance."
Art. 17, Sec. 5: "Any person to whom such certificate shall be granted
shall be admitted, upon application, to naturalization, without showing
any further qualifications."
Art. 18, Sec. 1: "The naturalization of aliens shall be exclusively
within the jurisdiction of the Justices of the Supreme Court."
36 See 3 Hackworth, Digest of International Law, 125. The State
Department has gone astray because it blindly followed the ruling in
Bowler's case, 2 For. Rel. of the U. S. (1895) 853; see also Godfrey's
case, id. at 867, without observing the complete change in the Hawaiian
naturalization laws effected by the Constitution of the Republic. Bowler
had been naturalized under the laws of the Monarchy, and although
Godfrey had become a denizen under the Republic, the real question
before the U. S. State Department was not whether he had acquired
Hawaiian nationality but whether he had forfeited American diplomatic
protection. The moral of these rulings in the light of the Hackfeld case is,
 I submit, that when a lawyer deals with foreign law, he is well advised to
approach that subject with a high degree of intellectual humility. Cf. note
39, infra.
I worked out a somewhat labored syllogism while in the Islands: (1) A U.
S. Court would judicially notice the foreign law of an antecedent
sovereignty on U. S. soil. (2) However, judicial notice is not judicial
knowledge. Shapleigh v. Mier.3S (3) Foreign systems of law are, to us, "like
a wall of stone"; one has to be brought up within the system to understand
it. Diaz v. Gonzales.39 (4) Hawaiian law is for this purpose to be regarded
as foreign, equally with Puerto Rican law. Waialua Agricultural Co. v.
Christian. 40 Therefore, (5) it is proper to look to the views of those brought
up within the system.

37 Provided for in the Joint Resolution of Annexation, 30 Stat. 750,

751.
38 299 U. S. 468.
39261 U. S. 102, 105-106, per Holmes, J.: "This Court has stated
many times the deference due to the understanding of the local courts
upon matters of purely local concern. * * * This is especially true in
dealing with the decisions of a court inheriting and brought up in a
different system from that which prevails here. When we contemplate
such a system from the outside it seems like a wall of stone, every part
even with all the others, except so far as our own local education may
lead us to see subordinations to which we are accustomed. But to one
brought up within it, varying emphasis, tacit assumptions, unwritten
practices, a thousand influences gained only from life, may give to the
different parts wholly new values that logic and grammar never could
have got from the books."
Fortified by this laboriously constructed syllogism, I duly asked these
witnesses (plus two others), "Were persons who received such special rights
of citizenship considered by the bar of Hawaii to be Hawaiian citizens?"
My opponent screamed that I was asking for the witnesses' opinions on a
point of law, as indeed I was; but I got the expected helpful answers, and
then took the depositions back to the mainland and prepared for the trial.
 In the course of expanding the foregoing for the trial brief on the law, I
looked for a suitable ornamental citation to document the first and
undisputed proposition that a United States court would judicially notice the
foreign law of an earlier sovereign on American soil. A quick check in the
digest turned up Fremont v. United States/1 where Chief Justice Taney had
said:
And when there are no published reports of judicial decisions which
show the received construction of a statute, and the powers exercised under
it by the tribunals or officers of the government, it is often necessary to seek
information from other authentic sources, such as the records of official
acts, and the practice of the different tribunals and public authorities. And it
may sometimes be necessary to seek information from individuals whose
official position or pursuits have given them opportunities of acquiring
knowledge. [Italics added.]
This of course made the Hawaiian lawyers' opinions admissible; the
quest for the ornamental citation had paid off in jackpot fashion. At the
trial, the testimony in question went in with the mere citation of the
Fremont case, and both the District Court and the Second Circuit placed
reliance on that testimony in ruling that receipt of the Certificate of Special
Rights had not made Hackfeld (who had been born in Germany) a citizen of
the Republic of Hawaii.42
40 305 U. S. 91.
4117 How. 542, 557.
42 "That the mere acceptance of one of these special rights certificates
did not entitle the holder to citizenship in the Republic was further
shown by a great mass of evidence introduced by the Government, as
follows: * * * (2) Five distinguished Honolulu lawyers testified that it
was the general understanding of the bar of Hawaii that the mere
acceptance of such a special rights certificate had no such effect as
Hackfeld claimed." Oral opinion of Coxe, D. J., directing a verdict for
the United States, CCA. record, pp. 745746; Supreme Court record, pp.
635-636, No. 325, Oct. T. 1941.
(2) Another instance of a quest for the ornamental citation that turned up
something far more valuable occurred in the first two cases dealing with the
validity of military trials of civilian dependents in time of peace.43
In its endeavor to support the military jurisdiction, the Government
quoted the following passage from a then recent decision of the Court of
Military Appeals:
Conceding we are not in a state of declared war, our foreign armies may
be likened to the Army garrisons in the far west during the days of the
Indian Wars. They must be prepared to fight at the drop of a boot, and their
state of readiness depends upon control over those who contribute to the
success of their operations. Camp followers in those days were considered a
necessary part of a military expedition * * * 44
Using this analogy, the Government argued that present day civilian
dependents were similarly subject to military law.
In the course of preparing the answering brief on behalf of the civilian
women, I questioned in my mind the soundness of the analogy, inasmuch as
there was considerable law to the effect that Indian Wars, despite their
undeclared status, were to be regarded as involving a time of war rather
than of peace;45 and moreover I recalled having seen, somewhere, a
comment to the effect that in strictness there was no such thing as a camp
follower except in time of war. Any reference to the latter proposition was
essentially ornamental; none the less, I looked for and found it; and, when
located, the actual holding proved to be far broader than I had recalled it to
be. The Judge Advocate General of the Army had early ruled as follows:
"The testimony of five distinguished members of the Hawaiian bar
accords with our interpretation of the Hawaiian law." United States v.
Rodiek, supra, 117 F. 2d at 594.
43 Reid v. Covert, 354 U. S. 1.
44United States v. Burney, 6 USCMA 776, 799, 21 CMR 98, 121,
quoted in Pet. Br., No. 713, Oct. T. 1955, p. 75.
45 See 13 Op. Atty. Gen. 31, 470, and 472; Dig. Op. JAG, 1912, p.
1055; Winthrop, Military Law & Precedents (2d ed. 1896) * 136-137,
*964, *976. Indians violating the laws of war were held subject to trial
like any other unlawful belligerents. Case of the Modoc Indians, 14 Op.
Atty. Gen. 249. But an Indian killing a soldier in battle was accordingly
 not guilty of murder. United States v. Plenty Horses (Dist. So. Dak.
1891), cited in Winthrop, * 1224-1225.
A post trader is not, under the Act of 1876, and was not under that of
1867 or 1870, amenable to the jurisdiction of a military court in time of
peace. The earlier statutes assimilated him to a camp follower, but, strictly
and properly, there can be no such thing as a camp follower in time of
peace, and the only military jurisdiction to which a camp follower may
become subject is that indicated by the 63d Article of War, viz. one
exercisable only "in the field" or on the theatre of war. Nor can the Act of
1876, in providing that post traders shall be "subject to the rules and
regulations for the government of the army," render them amenable to trial
by court martial in time of peace. * * * If * * * the Articles of War are
intended to be included, the amenability imposed is simply that fixed by the
particular Article applicable to civilians employed in connection with the
Army, viz. Art. 63, which attaches this amenability only in time of war and
in the field. Thus, though post traders might perhaps become liable to trial
by court martial if employed on the theatre of an Indian war, as persons
serving with an Army in the field in the sense of that Article, they cannot be
made so liable when not thus situated * * *'.46
Consequently, accepting fully the Government's contention that the
jurisdictional situation of modern civilian dependents abroad was identical
with that of the camp followers of our postCivil War Indian-fighting Army,
this ruling, which established that the post trader of old was not triable by
court-martial except at a time and in an area of actual hostilities,47
necessarily and inescapably threw the Government lawyers' analogy right
back into their collective faces, and turned their contention into a powerful
argument in favor of the civilian women.
Indeed, the greatest compliment paid by the Government to the weight of
the post trader ruling was the circumstance that, in the over 200 printed
pages of argument it presented to the Court after the filing of the brief
containing the ruling, and before final decision on rehearing, it never once
mentioned—much less discussed—the status of the post trader. While such
an ostrich-like technique is not to be commended (compare Section 35 (d)
above and Section 83 (b) below), in this instance it once more emphasized,
though assuredly in highly unorthodox fashion, the fact that the brief-writer
who starts out to look for a merely ornamental citation may in the process
uncover a real blockbuster.
46
Dig. Op. JAG, 1880, p. 384, f 4; id., 1895, pp. 599-600, f 4; id.,
1901, p. 563, i] 2023.
47The post trader was succeeded by the post exchange—see Dugan v.
United States, 34 C. Cls. 458; Kenny v. United States, 62 C. Cls. 328;
and Standard Oil Co. v. Johnson, 316 U. S. 481, for differing accounts of
the emergence of the now familiar PX—and, by the time the 1912
edition of the Dig. Op. JAG was being compiled, had become obsolete,
so that the older ruling was not again reprinted.

Section 71. Citations; manner of citation; in general.

—Legal citations are abbreviations designed to identify the location, the
source, and hence prima facie the weight, of the authorities relied upon by
the brief-writer. Citations must be short enough to save the reader's time,
and yet long enough to preclude the slightest possibility of confusion by
reason of over-compression. Like any other kind of abbreviation constantly
in use, legal citations reflect the conventions and usages of the profession
that employs them. Consequently, while in many instances there is a wide
range of variant citation forms that are equally correct and hence equally
acceptable, in other instances there is a sharp, clear line between correct and
incorrect usage, a line that sets off the well-educated lawyer who is steeped
in the traditions of a learned profession from his less privileged brethren to
whom the practice of law is simply a more or less remunerative trade.
Like all professional conventions, fashions in citation forms change with
the times. It was formerly customary to insert a comma between the volume
and the page of the report being cited, as for instance, "10 Modern, 138." 48
Similarly, when the Federal Reporter was first published, it was only
partially abbreviated; the usual citation was, e.g., "14 Fed. Rep. 682." 49
And, when the United States Code was still a novelty, one of the most
meticulous of Supreme Court Justices cited it simply as "C," followed by
title and section numbers.50 Other examples of changing citation
conventions will readily occur to the reader.
 The number of persons doing legal writing and thus employing citations
grew markedly as more and more legal journals came to be published. In
time, the editors of those publications—like editors everywhere—
prescribed style manuals to which all contributors were required to
conform. At first such formbooks were simply drawn from the citation
usages met with in the older series of reports. Later, refinements and
innovations were introduced, such as, in Federal citations, an indication of
the court deciding the case. Inasmuch as the Federal Reporter for its first 50
years or so reported the decisions of all the lower Federal courts—the
Circuit Courts as long as they existed, the Circuit Courts of Appeals from
the time of their creation, and the District Courts until the Federal
Supplement began publication—it was obviously most helpful to a reader to
have some indication of the authority of a given "Fed." citation.
48 Wallace, The Reporters (Heard's 4th ed. 1882) 274.
49 E.g., 120 U. S. at 111.
50 Holmes, J., in Mitchel v. Hampel, 276 U. S. 299, 302.
But along with such useful additions, which were varied in minor details
over the years—so that, in the larger law offices, one could tell from a
particular lawyer's citation forms just what volumes of the law review he
had helped to edit—the law school journals invented and began to use a
virtually cryptographic code to signal the weight to be accorded a particular
citation appearing in their pages. Along with accord and semble, which had
the support of legal tradition, they introduced the use of "see," "cf.," "but
see" and "but cf." Each of these prefixes had a value—in the minds of the
editors—as precise as those attaching to algebraic symbols. At this juncture,
the path of the law reviews on the one hand, and that of practitioners and
judges on the other, diverged sharply; such "introductory signals" carried as
little meaning to the profession as, for example, a localized and topical
classroom pleasantry. And, ultimately, with the appearance of the 9th
edition of A Uniform System of Citation, published in 1954, the law reviews
in important respects turned their backs on professional tradition, and
marched off in a different direction all their own.
The nature of their more important departures from accepted lawyer
usage will be pointed out in the sections that follow. At this juncture it will
suffice simply to set forth some general observations to guide the lawyer
who undertakes to write briefs for real courts (i.e., other than moot courts) .
First of all, follow a system of citation that is clear, that is simple, and
with which the judicial reader will feel comfortable. The practitioner in the
Federal courts is in consequence well advised to adopt—at least as a
starting point—the citation form employed in the official U. S. Reports.
Second, be consistent—or at least reasonably so. (A former colleague
always insisted that the only real essential was to avoid inconsistency on the
same page.)
Third, be sufficiently flexible to eliminate even an appearance of
pedantry. Thus, while it is generally desirable to add the designation of the
court in parentheses, as for instance Parsons v. Smith, 255 F. 2d 595 (C A.
3), there is no need to do so when you have already indicated the court in
your text—e.g., "as held by the Third Circuit in Parsons v. Smith, 255 F. 2d
595."
Fourth, use A Uniform System of Citation with caution. It is full of useful
suggestions, but the practitioner will be well advised not to follow it
blindly.

Section 72. Citations; manner of citation; titles of cases.

— Very frequently the title of a case is extremely long as it appears at the
beginning of the report. Thus, a recent Supreme Court case bears the title
United New York and New Jersey Sandy Hook Pilots Association et al. v.
Halecki, Administratrix.5'1' How much of the foregoing should go into the
brief?
One way is to start with the name of the case as it appears at the
beginning of the opinion in the official report, and then to hack away at it to
reduce that name to more manageable proportions. Another system is to cite
the case as it appears in the running head, i.e., the line on the top of the
right-hand page of the report above the opinion, and to expand only if
necessary.
The latter method—which I will call the running head rule of thumb—is
used by the Reporter of Decisions of the Supreme Court. It is also used by
the Office of the Solicitor General of the United States. Apart from the
weight of that combined authority, it results in the convenience of short case
titles, since the U. S. Reports are published in octavo volumes whose pages
are small enough to insure a short running head as the case title. It is
therefore the preferable method on every ground. Accordingly, in the
instance set out above, where the running head in the official reports is
United Pilots Assn. v. Halecki, the case will be thus cited.
Here are some necessary qualifications to the running head rule of
thumb:
(a) Where the first word of either party's name is abbreviated in the
running head, it will normally be spelled out in the citation.
Thus, the case of International Harvester Credit Corp. et al. v. Goodrich
et al., Constituting the State Tax Commission of New York 52 has the
running head Int. Harvester Corp. v. Goodrich. The first word of appellant's
name is abbreviated, hence the case would be cited in a brief as
International Harvester Corp. v. Goodrich. Similarly, U. S. Gypsum Co. v.
Nat. Gypsum Co.53 in the running head becomes United States Gypsum Co.
v. National Gypsum Co. in the brief, while Pan-Atlantic Corp. v. Atl. Coast
Line 54 in the running head is written as Pan-Atlantic Corp. v. Atlantic
Coast Line in the brief.
51 358 U. S.613.
52 350 U. S. 537.
(b) Very frequently one of the parties is an agency sufficiently well
known so that it can be unmistakably identified by its initials, which
accordingly are simply abbreviated in the running head. E.g., United States
v. I.C.C.f5 S.E.C. v. Louisiana Pub. Serv. Comm'n.,5e F.T.C. v. National
Casualty Co.57 The official reports in such instances apply qualification (a),
above, and spell out the name of the agency in later citations—Interstate
Commerce Comm., Securities & Exch. Comm., Federal Trade Comm. In
cases involving the National Labor Relations Board, the consistent running
head rendering has been Labor Board—e.g., Labor Board v.
Steelworkers.58 There the basic rule of thumb disposes of the question of
how to cite.
 While a variant form of citation, with initials alone not set off by periods
—ICC, SEC, FTC, NLRB—cannot fairly be considered plainly wrong, the
lawyer writing briefs for Federal courts will undoubtedly do better to follow
the style book of the U. S. Reports.
(c) Where one of the parties is an organization similarly known by
initials, the practice appears to vary. Thus, United States v. C.I.O.59 and
N.A.A.C.P. v. Alabama 60 are cited just as they appear in the running head,
initials, periods, and all. On the other hand, A.F. of L. v. Watson 61 has later
been cited, on consecutive pages, both as American Federation of Labor v.
Watson and as A.F. of L. v. Watson.62 In this instance, you pays your money
and you takes your choice—just try to be consistent, at least in the same
brief.
53 352 U. S. 457.
54 353 U. S. 436.
55 352 U. S. 158.
56 353 U. S. 368.
57 357 U. S. 560.
58 357 U. S. 357.
59 335 U. S. 106.
60 357 U. S. 449.
61 327 U. S. 582.
62The expanded version appears at 345 U. S. 245, the contracted one
at 345 U. S. 246.
But, while you may expand a Supreme Court running head abbreviation,
don't abbreviate it simply for the sake of abbreviating. Thus, whether you
agree or disagree with the Segregation Cases, their citation will read more
smoothly as Brown v. Board of Education than as Brown v. Board of Educ.
The first version is that of the running head,63 the second the work of the
law reviews. Silly, isn't it?
 (d) Habeas corpus cases present a problem for any briefwriter who does
not follow the running head rule.
Suppose that one, Schmaltz, being detained in an institution presided
over by a warden answering to the name of Zilch, brings habeas corpus
seeking release from this form of enforced hospitality. The petition filed in
the district court will normally be captioned United States on the relation of
Joseph Schmaltz v. Oscar J. Zilch, Warden, ire. On occasion, and in some
courts, this cause will, despite such a caption, be docketed simply as
Schmaltz v. Zilch.6i As the case travels from court to court, the running
heads of the reported opinions will appear in any of three possible versions:
U. S. ex rel. Schmaltz v. Zilch; United States v. Zilch; Schmaltz v. Zilch.
How cite the case? Here again, the brief-writer will be well advised to be
consistent in following the reports in their inconsistencies and to follow the
running head, whatever it is. True, United States v. Kinsella, followed by
the citation, will not advise the casual reader whether he is reading the
opinion of the district court in the case of Mrs. Smith 65 or of Mrs. Dial,66
but then Green v. United States, depending on the citation, may be either
the recent double jeopardy case 67 or the decision in the succeeding volume
on the constitutionality of non-jury trials in contempt proceedings,68 while
United States v. duPont & Co. may similarly be either the cellophane
antitrust case 69 or the General Motors antitrust case.70
63 347 U. S. 483 and 349 U. S. 294.
64In the Covert case, I captioned the petition, United States of
America on the Relation of Clarice B. Covert v. Curtis Reid,
Superintendent of the District of Columbia Jail. See R. 1, No. 701, Oct.
T. 1955. To no avail; the Clerk docketed the case as Covert v. Reid, and
ex rel. never reappeared. Quaere, was this an instance of applying the
real-party-in-interest principle of Rule 17 (a), F. R. Civ. P., to a habeas
corpus proceeding, notwithstanding Rule 81 (a) (2), which makes the
Rules of Civil Procedure applicable to habeas corpus only at the
appellate stage?
651 37 F. Supp. 806 (S. D. W. Va.), ultimately reversed, 354 U. S. 1,
sub nom. Kinsella v. Krueger.
 66164 F. Supp. 707 (S. D. W. Va.), affirmed, 361 U. S. 234, sub nom.
Kinsella v. Singleton.
67 355 U. S. 184.
So—follow the running head. And do likewise in the Miller Act71 cases,
which provide that the action on the contractor's bond is to be brought in the
name of the United States for the use of the person suing. E.g., United
States v. Carter.72
(e) The National Reporter System, despite its many admirable qualities,
is not always characterized by meticulous nicety in collateral editorial
matters, particularly with reference to running heads. In the tax field, for
instance, the No. 1 revenuer formerly appeared interchangeably as
Commissioner of Internal Revenue, Com'r of Internal Revenue,
Commissioner of Internal Rev., Commissioner of Int. Rev., and
Commissioner of I. R. More recently, he is shown in the running head
simply as C.I.R. In this instance the solution is to require the running head
rule to yield to simplification: Just cite as Commissioner, neither more nor
less. And, inasmuch as all of the Federal volumes have appeared in the
larger quarto size for many years, with larger pages accommodating a
longer running head, judicious trimming of complicated corporate names on
the part of the brief-writer is entirely in order, even for the most devoted
followers of the running head rule.
(f) In the reports of the Tax Court and of the Court of Claims, the running
head includes only the name of the petitioner and of the plaintiff,
respectively. After all, every Tax Court petitioner sues the Commissioner of
Internal Revenue, every Court of Claims plaintiff the United States. At this
point it is well to invoke the principle (p. 223, supra) that the brief-writer
should keep the judicial reader comfortable. The Court of Claims cites its
cases in the usual way, e.g., Loth v. United States,73 notwithstanding that
the running head is rendered as Margaret R. Loth, et al. The Tax Court, on
the other hand, cites its own prior rulings by running head alone: Nathan
Fink.14, My own preference, therefore, is to follow each court's system of
citation for my citation of its decisions in other courts.75
68 356 U. S. 165.
69 351 U. S. 377.
 70 353 U. S. 586.
71
Act of August 24, 1935, c. 642, 49 Stat. 793; 40 U.S.C. §§ 270a and
270b.
72353 U. S. 210. Civil Rule 17(a) expressly excepts such cases from
the real-party-in-interest requirement.
73 133 C. Cls. 476.
74 29 T. C. 1119.
(g) If the running head in the official report differs from that in an
unofficial one, follow the former if it is available. If not, and if you are
dealing with U. S. cases, you can be certain that the official running head
reads New York and not State of New York. Therefore, always omit State of
in such cases if and when it appears in the running head of an unofficial
report.
(h) Finally, in the English reports, as well as in many of the earlier
American reports, the name of the case is carried, not in a running head, but
in a side-note. In those instances, use the sidenote for the form of the
citation.

Section 73. Citations; manner of citation; reports.

—What follows immediately below must be considered in the light of
any applicable court rules; some place considerable emphasis on how cases
should be cited, and as to whether or when citations to the National
Reporter System should be included.
(a) U. S. reports. When citing cases from the U. S. reports prior to
volume 91 U. S., always cite by the name of the reporter and not by the
subsequently assigned consecutive number. Thus, the citation to Marbury v.
Madison is 1 Cranch 137, not 5 U. S. 137; to Luther v. Borden, 7. How. 1,
not 48 U. S. 1; to Ex parte Milligan, 4 Wall. 2, not 71 U. S. 2. Citations to
such cases other than by the name of the reporter alone mark the brief-
writer as a legal illiterate, or, at the very least, as one not very well brought
up or educated.76
 1 am aware that, beginning in 1954, the law reviews introduced the
thoroughly abominable system of using the numerical numbers plus a
parenthetical citation to the reporter: e.g., 5 U. S. (1 Cranch) 137; 48 U. S.
(7 How.) 1; 71 U. S. (4 Wall.) 2. It seems sufficient to remark that it is one
of youth's inalienable privileges to be not only wrong, but stubbornly wrong
to boot. No lawyer worth his salt is going to abandon the Supreme Court's
own consistent usage in favor of this perverse innovation. Interestingly
enough, in order to obtain for their pages a recent article by a Supreme
Court Justice, the lads on one law school review were required by the
author, as the price of publication in their pages, to return to the traditional
citation form."
75
In this particular instance, the lads on the law reviews appear to
have the edge on the Solicitor General and his staff.
76
For convenience of reference, the following is the order of U. S.
Reports:
4 of Dallas (Dall.)
9 of Cranch (now not generally abbreviated) 12ofWheaton (Wheat.)
16 of Peters (Pet.) 24 of Howard (How.)
2 of Black (not generally abbreviated) 23 of Wallace (Wall.)
Moreover, notwithstanding the estimable concerns that publish the
collateral sets of U. S. Supreme Court reports, there is no need to encumber
a brief with parallel citations to S. Ct. or to L. ed.; the case can always be
found, in any library, and in any of the other reports, with the U. S. citation
alone.
In this connection, and to prove that the foregoing is not just a personal
whim, it may be appropriate to quote from a letter received from a
prominent member of a large metropolitan bar commenting on a chapter of
this book when it first appeared in a legal periodical:
My second point is probably one with which you had nothing to do: the
citation in your article and footnotes of "Sup. Ct." and "L. ed." citations
along with the official citations to the United States reports. Except in the
case of U. S. citations (and even there when a case has not been officially
reported), I list parallel citations to all the reports, but I believe that where
U. S. cases are officially reported it is burdensome, not only to the writer,
but—more important—also to the reader, to give these unofficial citations
in addition to the U. S. citation. The practice is not particularly helpful to
the reader because the unofficial reports are keyed to the official reports on
the outside label of the appropriate volume. I would like to see someone in
your position of prominence strike a blow for freedom from this
burdensome practice which I think is an invention of book publishers not
helpful to practicing lawyers. While, as my comments earlier in the letter
will perhaps indicate, I am a believer in consistency and a proper amount of
symmetry in the writing and in the printing of briefs, I believe that the
burden of giving and reading parallel citations to U. S. cases far outweighs
any possible benefit flowing from them.
Moreover, the official advance sheets are now so nearly current that there
is much less excuse than formerly for citing the collateral and unofficial
reports even for recently decided cases; that may depend, however, on local
library facilities. It should also be noted that the quickest service for the text
of recent opinions of the Supreme Court is the U. S. Law Week, published
by BNA, Incorporated, which is generally received in the mail the day after
the decisions—two days before the slip opinions.
77See Frankfurter, John Marshall and the Judicial Function, 69 Harv.
L. Rev. 217. The statement in the text is supported by the column entitled
With the Editors, at p. vii of the December 1955 issue of the cited
publication.
Recent and hence still unreported cases are cited by number and date of
decision. E.g., "Elkins v. United States, No. 126, this Term, decided June
27, 1960." Where page reference is necessary, simply say "p. 7 of slip
opinion." 77a That form of citation facilitates reference, inasmuch as the slip
opinions are circulated to the members of the Supreme Court, to all other
Federal judges, and to the Department of Justice, which distributes them to
its lawyers both in Washington and in the field. The several sets of slip
opinions are constantly referred to, the unofficial advance sheets rarely if at
all. If you do not have access to the slip opinions, then by all means use the
U. S. Law Week citation.
(b) Federal reports. Cite as Fed., F.2d, or F. Supp., as the case may be;
for at least twenty years or so it has been customary to omit the parentheses
around the "2d." In the Federal Reporter itself, the parentheses dropped out
beginning with 93 F. 2d, early in 1938. It is not wrong to cite the first series
of the Federal Reporter as "F.," but "Fed." is preferable, because it is less
apt to cause confusion in the inevitable situation where the "2d" has
somehow dropped out of an "F.2d" citation.
Always add in parentheses, in order to indicate the weight of the citation,
an indication of the court deciding the case; e.g., for district courts:
(S.D.N.Y.), (E.D.I11.), (D.Mass.) ; for the U. S. District Court for the
District of Columbia: (D.D.C.) ; and for the old circuit courts:
(C.C.S.D.N.Y.), (C.C.D.Kan.).
The intermediate Federal appellate courts started out as circuit courts of
appeals, but in 1948, for no good or ascertainable
reason,78 became courts of appeals for the circuit. Cite
either as (C.A. 3) or as (3d Cir.) ; there is really not much difference; I
prefer, and hence use, "C.A. 3."
77aSee, for example, the citations to the slip opinions in the Petition
for Rehearing that is set forth in Section 173, below.
78See 28 U.S.C. § 43 (a) . For the reasons, or lack of them, see H. R.
Rep. 308, 80th Cong., 1st sess., p. 5; Maris, New Federal Judicial Code,
34 A.B.A.T. 863, 865.
The appellate court in the District of Columbia is now, by virtue of
statute, the United States Court of Appeals for the District of Columbia
Circuit79—a circuit which extends only through the corridors of a single
courthouse! To identify its decisions, some briefwriters add the indication
(D. C. Cir.); others continue to use the older version (App. D. C.); some
write (CA.D.C.); while still others use (App. D. C.) if the case was decided
before the District of Columbia was constituted a circuit and either (D. C.
Cir.) or (CA.D.C.) for post-1948 cases.80 Personally I prefer the alternative
last mentioned, viz., (App. D. C.) for pre-1948 decisions, and (D. C. Cir.)
for cases decided thereafter. However, for briefs filed in that court, the rules
require, in every instance, parallel citations to its own App. D. C. and U. S.
App. D. C. reports,81 in which event of course no further indication is
necessary.
 As to the old Federal Cases, that grand but now unfortunately rare series
which reprints the old circuit court reports antedating 1880, the practice
varies. Those cases are properly cited by number rather than by volume and
page, but ideally the old report should be cited also: e.g., Despan v. Olney, 1
Curt. 306, Fed. Case No. 3822 (C.C.D.R.I.). A variant is to add the number
of the Federal Cases volume, viz., 7 Fed. Cas. No. 3822. For page citations,
write Despan v. Olney, 1 Curt. 306, 309-310, Fed. Case No. 3822, 7 Fed.
Cas. at 535.
I won't assert that to cite the old Federal Cases without the name of the
original report is on a par with citing the early U. S. cases by the
consecutive volume number rather than by the name of the reporter, but I
am confident that no real lawyer who has any feeling for the formative
years when the Justices of the Supreme Court rode circuit will do so. After
all, such a step would be on a par with citing an English decision prior to
1865 simply by its English Reprint location, without any reference to the
report in which it first appeared and by which it can be recognized.
79 See 28 U.S.C. § § 41, 43 (a).
80 Its original name was "Court of Appeals of the District of
Columbia." Act of Feb. 9, 1893, c. 74, 27 Stat. 434. Some forty years
later, following the Supreme Court's determination of the status of the
District of Columbia courts in O'Donoghue v. United States, 289 U. S.
516, Congress changed the name to "United States Court of Appeals for
the District of Columbia." Act of June 7, 1934, c. 426, 48 Stat. 926.
81D.C. Circuit, Rule 17 (b) (10) . This series is numbered
consecutively; 75 U. S. App. D. C. is the first volume with the longer
title.
(c) Parallel citations to Federal cases. When the Circuit Courts of
Appeals were first established, their opinions were officially reported and
were cited as "CCA." That series ceased publication in 1919 or thereabouts,
most libraries now do not have it, and consequently citations thereto are not
only useless but burdensome besides.
The Court of Claims has its own series of reports, which it cites as "C.
Cls." Some but not all of its present day decisions appear in F. Supp., and,
since 1960, in F.2d. See p. 19, supra. For a Court of Claims brief, cite only
C. Cls., unless the case is still unreported, in which event you may use
either the slip opinion citation or F. Supp. or F.2d. For briefs in other courts,
adapt your citations to their and your library facilities; parallel citations, if
readily available, will probably be most convenient all around.
The Court of Customs and Patent Appeals prefers a citation without
periods, and without any parenthetical designation as to "Pat." or "Cust.,"
viz., CCPA.82 The comments regarding parallel citations to F. Supp. and
F.2d in the Court of Claims are applicable to parallel F.2d citations in this
court.
In citing Court of Military Appeals cases, it is customary to omit periods
but to use parallel citations: e.g., United States v. Buck, 9 USCMA 290, 26
CMR 70. However, when writing a brief just for that court, there is
generally no need to add the CMR reference when you cite simply its own
decisions.
(d) Subsequent history. Spell out "affirmed," "reversed," and "affirmed
[or reversed] on other grounds," and, similarly, indicate changes in the title
of the case other than mere transpositions: e.g., In re Title of Kioloku, 25
Haw. 357, affirmed sub nom. Territory of Hawaii v. Hutchinson Sugar Co.,
272 Fed. 856 (C.A. 9) ; Ex Parte Drainer, 65 F. Supp. 410 (N.D.Cal.),
affirmed sub nom. Gould v. Drainer, 158 F. 2d 981 (C.A. 9). There is no
need to italicize the English words in any of these indications.
Is it necessary or desirable to add a reference to "certiorari denied" when
that is the fact? Broivn v. Alien93 reaffirmed the original understanding that
a denial of certiorari is without substantive significance—except that the
State prisoner seeking Federal relief by way of habeas corpus must, as a
procedural prerequisite, show that he duly sought certiorari to review the
State supreme court's affirmance of his conviction! 84 Accordingly, some
Supreme Court Justices have complained that "the bar, in briefs, and lower
courts, in their opinions, continue to note such denials by way of
reinforcing the authority of cited lower court decisions." 85
82Notice by the Court, Dec. 15, 1958, which points out that the
Customs portion begins with page 1 in each volume, while the Patent
section commences at page 700.
83 344 U. S. 443.
 My own view is that the "certiorari denied" citation—both words spelled
out, please—is a desirable addition, not in any sense because it adds weight
to the opinion, but simply to show the travel of the case: e.g., Chapman v.
Santa Fe Pac. R. Co., 198 F. 2d 498 (D. C. Cir.), certiorari denied, 343 U. S.
964. Where the names of the parties change completely, indicate that, but
do not do so simply where the names are reversed as the losing party below
becomes a petitioner: e.g., Blaustein v. United States, 44 F. 2d 163 (C.A. 3),
certiorari denied sub. nom. Sokolv. United States, 283 U. S. 838.
Be sure to indicate, in any event, the grant of certiorari that is later
followed by a dismissal of the writ either by stipulation or because the case
later became moot. The grant of the writ in such instances is a signal—
indeed, a red flag—that the lower court's decision was considered
sufficiently doubtful to warrant review.86
Citations to denials of rehearing are better omitted, except only when the
court has written an opinion in connection with such denial: e.g., United
States v. Rodiek, 117 F. 2d 588 (C.A. 2), rehearing denied, 120 F. 2d 760,
affirmed by equally divided court, 315 U. S. 783.
84 Darr v. Burford, 339 U. S. 200. For an example of the curious result
of insisting on the earlier application for certiorari, see Leyra v. Denno,
347 U. S. 556, a case which may be cited for the proposition that
collateral review is apt to be more rewarding than direct review, even on
an identical record. More recently, however, there has been an indication
that the Darr v. Burford rule may be becoming more flexible. See
Thomas v. Arizona, 356 U. S. 390, 392, note 1.
85 Frankfurter and Harlan, JJ., in Elgin ire. Ry. Co. v. Gibson, 355 U.
S. 897.
86 See, e.g., Perlstein v. United States, 151 F. 2d 167 (C. A. 3),
certiorari granted, 327 U. S. 777, and dismissed because moot, 328 U. S.
822 (courtmartial jurisdiction over civilian employees); compare the
cases cited in note 91, p. 87, supra. See also United States v. Fenno, 167
F. 2d 593 (C. A. 2), certiorari granted, 334 U. S. 857, and dismissed by
stipulation of counsel, 335 U. S. 806 (military jurisdiction over Fleet
Reservist); compare United States v. Bledsoe, 152 F. Supp. 343 (W. D.
 Wash.), affirmed, 245 F. 2d 955 (C. A. 9) (Fleet Reservists cannot be
recalled to active duty simply for trial by courtmartial) .
(e) State cases. The rules of the Supreme Court now require parallel
citations to both the official and unofficial citations of the State court's
opinion below,87 and hence, by inference, similar parallel citations
throughout the brief. A number of Courts of Appeals specifically require
such parallel citations throughout.88
Practitioners who have access to the larger law libraries are undoubtedly
spoiled in not realizing the handicaps under which lawyers and judges
without such facilities operate. Probably the safest rule of thumb for any
court not familiar to you that does not prescribe the form of State citations,
or where there is no welldefined local practice, is to include both the official
and the Reporter citation whenever both are available.
To the extent that your Federal brief involves the citation of State cases
(see Sections 49 and 69, supra), follow the practice of the jurisdiction in
question as to the method of citing the early reports. In Massachusetts, for
example, these are invariably cited by the names of the reporters; in North
Carolina, to take an instance of the other tradition, a rule of court requires
that they be cited by consecutive number.89 In Virginia, as the official
reports show, the practice is to use parallel citations: e.g., 13 Gratt. (54 Va.)
587.90
(f) English reports. Cite by the name of the original reporter, using the
traditional abbreviation; there are many lists of these available, in numerous
law dictionaries and bibliographical manuals. Whether the parallel citation
to the English Reprint series should be added depends on the library
facilities available, but it is not generally necessary and certainly not
required. For the reports from 1865 through 1890, be sure to add the "L.R."
prefix, else confusion with abbreviations that are very similar will result.
From 1891 on, when the date in square brackets was included at the front of
the citation, "L.R." is omitted; e.g., Cipriani v. Burnett, [1933] A.C. 83.
Some brief-writers add "(C.A.)" to indicate a decision of the Court of
Appeal in the King's or Queen's Bench, Chancery, and Probate series, and "
(H.L.) " or " (P.C.) " to show whether an Appeal Case was decided by the
House of Lords or by the Judicial Committee of the Privy Council. In the
last twentyfive years or so, the familiar Law Reports have had competition
from the All England Law Reports series, cited by date, volume, and page;
e.g., London County Council v. Lees, [1939] 1 All E.R. 191. Since that
series does not carry any indication of the court involved, it will be found
more convenient to add one—in the case cited, " (K.B.D.) ." It is not for an
American practitioner to make a choice between the two series of reports;
suffice it to remark that the Law Reports are more generally available in
this country, and are more familiar to most judges, being an older series.
The point is probably not very vital; few briefs written in connection with
Federal appeals in the United States will ever have occasion to cite a single
English decision.
87 Supreme Court Rules 15 (1) (a), 23 (1) (a), 40 (1) (a).
88Seventh Circuit, Rule 17 (a) (3) ; Eighth Circuit, Rule 11 (b)
(Second); Ninth Circuit, Rule 18(2) (a); Tenth Circuit, Rule 19(3)
(Third); D. C. Circuit, Rule 17 (b) (10).
89 Rule 62; see 247 N. C. ii.
90 199 Va. at 355.
(g) Dates of cases. Whether to include the dates of decisions is a matter
of taste rather than of rule. The law reviews have popularized the notion of
including the date of every case they cite. The practice in the U. S. Solicitor
General's Office is to include the date as part of the citation only when it
seems relevant to the argument, and not otherwise. That course saves the
briefwriter infinite trouble, and withholds nothing of significance from the
court. It is accordingly the preferable course.

Section 74. Citations; manner of citation; constitutions,

statutes, and treaties.
— (a) Constitutions. Include Article and Section in the citation, and add
the clause if necessary: e.g., U. S. Const., Art. I, Sec. 8, CI. 14. The
Amendments may be identified either with the number spelled out or in
Roman numerals: Fifth Amendment, XIV Amendment. Capitalization is in
order; I do not quarrel with the standard of capitalizing less rather than
more, but fail to understand why the law review lads insist on writing "sixth
amendment" in lower case when they consistently capitalize some
prepositions, as, e.g., Letter From Madison to Jefferson; Treaty With Iran
on Commerce and Navigation. Apart from the circumstance that the latter
usage violates a fairly universally recognized convention, the former runs
contrary to the practice of the Supreme Court, which invariably uses
capitals in speaking of the amendments—First Amendment, Tenth
Amendment, etc.
When citing State constitutions in Federal briefs, give the date unless the
particular State has had only a single one since its admission, or unless the
court in which you are appearing can be in no possible doubt as to your
reference.
(b) Federal statutes. Remember (see Section 37 (c), above) that the
United States Code is not positive law except as to those titles that have
been specifically so enacted. Consequently, when citing a Federal statute
prior to 1957, in a situation where full reference thereto is necessary, give
date, chapter number, Stat, citation, and U.S.C. citation: e.g., Sec. 2 of the
Act of July 9, 1956, c. 525, 70 Stat. 510, 39 U.S.C. § 902 (g). This full form
is required by the rules of some courts.91 Where the statute in question
contains a built-in short title (as distinguished from a mere "popular name"),
it is generally permissible, certainly after the original citation, to use only
the official short title plus the U.S.C. citation: e.g., Sec. 204 of the War
Orphans' Educational Assistance Act of 1956, 38 U.S.C. § 1054.
Beginning with the 85th Congress and vol. 71 Stat., chapter numbers
were dropped. Admittedly this innovation has a number of advantages.92 I
may be pardoned, however, if I consider it highhanded to change, without
any statutory sanction whatever, a system that had been in effect for 168
years, since the beginning of the Republic—and in direct line of descent
from the method of numbering English statutes, used for many centuries
before.93
At any rate, Federal statutes after 1956 are cited by substituting the
public law number for the chapter number: e.g., Sec. 1 of the Act of March
23, 1959, P.L. 86-4, 73 Stat. 13, 50 U.S.C. App. § 467 (c). Interestingly
enough, when the chapter numbers were dropped, the slip laws as well as
the West Publishing Company's U. S. Code Congressional and
Administrative News began to carry the Stat, citation, though the latter gives
only the opening page of the Act.
 91 D. C. Circuit, Rule 17 (a) (10).
92 (a) There was no concordance between Chapter numbers and Public
Law numbers for two reasons. First, the Chapters included covered both
Public and Private Laws, numbering them chronologically, so that c. 124,
for instance, would virtually never be Public Law 124. Second, the
Chapter numbers started anew for each session, whereas the Public Law
numbers ran consecutively through an entire Congress, (b) In the past,
government lawyers spoke of "Public Law 810," without more, a
shorthand reference that was perfectly clear to the initiated—but not to
others. The new method of numbering public laws—e.g., "P. L. 86-3"—
identifies the statute for all time, and thus avoids infinite confusion.
931 made inquiries in a number of places on this score: there was no
statute; there was informal clearance by the Joint Committee on Printing;
and the idea to vary a practice of such long standing came from an
employee in the General Services Administration, and resulted in an
incentive award! It is proper to add that, in the course of those inquiries,
many active practitioners admitted not knowing that chapter numbers
had been discarded.
For more casual references, it will frequently suffice to cite only the U. S.
Code, and, whenever the original act has been amended several times and
only its present form is relevant, with nothing turning on the changes made
by successive amendments, it will be more convenient to do so. (Another
way out is to do a partial job, viz., "R.S. § 5252, as amended (33 U.S.C. §
4) .")
Remember that the proper citation of the Code, by statute,94 is "U.S.C";
"U.S.C.A." refers not to the Code, but to the annotated edition published by
West and Edward Thompson.
It is generally annoying to the reader if the U.S.C. citation is constantly
encumbered by the date of the edition you are using— 10 U.S.C. (Supp. I to
1958 ed.) § 1552. The solution is to indicate somewhere in your brief—a
footnote to the first statutory citation is usually the most appropriate place
—that "All citations to the U. S. Code are to the 1958 edition as amended
through the close of the 86th Congress, unless otherwise indicated," or that
"All citations to Title 38, U.S.C, are to the 1958 revision." 95 Then dates to
other editions will be used only where something turns on the changes
made in the earlier version.
(c) State statutes. With the citation of State statutes as with the citation of
State cases, follow the prevailing local practice, whatever that may be. In an
unfamiliar jurisdiction, you will soon get the feel of the proper citation by
reading a few recent cases (if you are not associated with a local
practitioner).
(d) Treaties and the like. Beginning as of January 1, 1950, treaties and
other international agreements contracted by the United States have
appeared in a separate series, United States Treaties and Other
International Agreements^ and not in the Statutes at Large, where they had
formerly been published.97 The new series is most conveniently cited
simply as "U. S. Treaties." 98 Inasmuch as the several volumes are paged
consecutively through their several parts, the citation need not include any
reference to the part of the volume.
9i 1 U.S.C. § 204 (e).
95While the revision of the present book was in progress, the 1958
edition of the United States Code, which includes all legislation through
the 1st session of the 85th Congress, was being published, and Supp. I
thereto has appeared.
96Pursuant to 1 U.S.C. § 112a, as added in 1950. The reason for this
change was administrative. The then newly created General Services
Administration had been given the responsibility, up to then lodged in the
State Department, of publishing the Statutes at Large. Since, very plainly,
the diplomats knew more about treaties than the housekeepers, the two
series were separated. See S. Rep. 1923 and H. R. Rep. 2909, both 81st
Cong., 2d sess. See also Surrency, The United States Statutes at Large,
52 L. Lib. J. 33.
Cite by short title, date of signing, TIAS number, and U. S. Treaties
volume: e.g., Treaty of Amity and Economic Relations with Ethiopia, Sept.
7, 1951, TIAS 2864, 4 U. S. Treaties 2134. In accordance with diplomatic
usage, the date is that of signing rather than of ratification or entry into
force,99 and the TIAS number is added for convenience, since many
individuals who have the treaty in slip form do not have access to the bound
volumes.

Section 75. Citations; manner of citation; miscellaneous.

— (a) Texts. Give the name of the author in roman, the title in italics, and
include the edition and its date: e.g., 3 Wigmore, Evidence (3d ed. 1940) §
995. This is required by some court rules.100 Volumes are designated by
arabic numerals, regardless of what actually appears on the spine of the
binding. The formbook boys now insist on putting the edition and date at
the end, which is confusing; the edition and date identify the work which is
being cited and thus are part of the title.
97The earliest Indian treaties are in 7 Stat., the earliest foreign treaties
in 8 Stat. From 9 Stat, through 64 Stat., all treaties appeared either in the
back of the Stat, volume or, where one volume appeared in several parts,
in the later parts. A complete list of all treaties in the Statutes at Large
will be found at 64 Stat. B1107-B1182. Further Indian treaties were
forbidden by the Indian Appropriation Act of March 3, 1871 (R. S. §
2079, now 25 U. S. C. §71)
The earlier treaties up to 1863 have been republished by the State
Department in a new edition under the supervision of Dr. Hunter Miller.
98The flyleaf of the first volume suggests "U S T" as the citation form.
That will be fine, say ten years hence, when more people learn about the
new series; but until bench and bar generally become aware that treaties
no longer appear in the Statutes at Large, the "U. S. Treaties" citation
seems preferable.
99 In this instance, the Senate consented and advised to ratification on
July 21, 1953; the President signed on August 4; Ethiopia ratified on
August 12; ratifications were exchanged on September 8; the President
proclaimed the Treaty on November 3; and it entered into force in
accordance with its terms on October 8. Following the usage set forth in
the text accordingly avoids considerable confusion.
100 D. C. Circuit, Rule 17 (a) (10) .
 (b) Legal periodicals. Unlike cases, articles are cited by the full title and
not by the abbreviated—frequently the substantially abbreviated—running
head. In the case of serials consecutively paged, the date is not necessary to
the identification, and hence if it is to be included at all, it belongs at the
end: Howe, Oliver Wendell Holmes at Harvard Law School, 70 Harv. L.
Rev. 401 (1957). On the other hand, if the publication is paged anew in each
issue, then the date is a part of the identification, and must precede the
page: Wiener, The Uniform Code of Military Justice, 1 Combat Forces J.
(Sept. 1950) 19.101
(c) Legislative materials. Cite committee reports and congressional
documents by number, Congress, and session: e.g., Sen. Rep. No. 492, 69th
Cong., 2d sess.; H. Doc. 96, 74th Cong., 1st sess. Cite the bound
Congressional Record by volume and page, without date: 40 Cong. Rec.
7040. Remember, however, that the pagination of the daily edition is
different, or nearly always so; accordingly, add the date in such cases: 106
Cong. Rec. 13453 (daily ed., June 27, 1960). The older Congressional
Globe was paged anew at each session, hence it must be cited by session
and page: Cong. Globe, 37th Cong., 3d sess., p. 1253.
In citing Congressional hearings, use as a title the heading that appears at
the top of the cover, and abbreviate liberally thereafter, being careful not to
omit the committee, the bill number, or the Congressional session: e.g.,
Uniform Code of Military Justice, Hearings, House Committee on Armed
Services, 81st Cong., 1st sess., on H.R. 2498, pp. 784-785.
(d) Administrative materials. The late Judge Hough deprecated using the
expression "the Federal specialties (as though they were a 'line of goods'),"
102 but it is precisely in those specialized fields—admiralty, patents,

trademark and copyright, wages and hours, labor relations, military law—
that the brief-writer most frequently cites administrative materials.
By analogy to the principle that technical terms are to be interpreted in
their technical sense,103 specialized citations are most conveniently
rendered in the forms familiar to the specialists concerned. For example,
before the advent of the Uniform Code of Military Justice, the Army's code
was contained in the Articles of War, that of the Navy in the Articles for the
Government of the Navy; military lawyers used the abbreviations "AW"
and 'AGN," respectively, as prefixes for the particular provision cited; and
those accordingly are the preferable citations for use in briefs submitted to
courts of general jurisdiction. When many similar specialized abbreviations
are used, it is a good idea to provide a glossary, either by way of footnote,
or on a page facing page 1 of the brief. Such a course is infinitely more
convenient than any attempt to improvise a new system of citations, or to
try to torture specialized forms into the Procrustean bed of a formbook.
101 How else get this particular article into the present book?
102 Book Review, 36 Harv. L. Rev. 117, 119.
103 Cf. 7 Wigmore, Evidence (3d ed. 1940) § 1955.
The same approach is recommended for any other specialty: follow the
accepted usage of the informed technicians in the particular field.
(e) Supras and infras. Use supras and infras sparingly; it is very
annoying to any reader to be required to hunt for the original citation, and it
isn't going to make the judge who reads your brief more receptive to your
contentions if he has to backtrack, groping through pages he has already
read, when he wants to locate the citation that now for the first time
interests him. It is not uncommon, in the process of making revisions under
the pressure of a deadline, for the original citation to drop out entirely; in
that event, the decision on which you are relying will be utterly lost.
Accordingly—in self-defense—some court rules prohibit the use of supras
altogether.104
The best solution in most instances is to use both the supra and the
original citation; the first indicates that you have already cited the case
before, the second makes the citation immediately available. And do the
same thing when you are using a page reference later on: e.g., "Cramer v.
United States, 325 U. S. 1, supra"; "or, as the Court said in the Cramer
case, supra, 325 U. S. at 35."
There is really nothing more irritating than to read, time and time again,
"See Wilson v. United States, supra, at 743"—and then to have to try to find
the volume from somewhere on up the line.
(f) Accepted typographical conventions. "Conform in little things" is
always sound advice, and particularly so when applied to typographical
forms; if you have an irresistible urge to innovate, and feel that you must
blaze a trial, channel that impulse so that it will not carry over into briefs
written for Federal appellate courts.
104 Seventh Circuit, Rule 17 (a) (3) : "In references to decisions once
cited in the brief, the word 'supra' shall not be employed, but the volume
and page shall be stated."
For instance, historians who cite from manuscripts always use the
abbreviation "MS.," or, in the plural, "MSS." It may not be any more logical
than the symbol "LL.B." to denote the possession of a law degree, but it is
universally accepted. Consequently, on those rare occasions when your
brief makes reference to manuscript material, cite it according to the
convention, and don't lapse into "Ms." or "ms." simply because some
schoolboys think differently.

Section 76. Citations; accuracy of citations.

—As has been noted (Section 66, above), the only safe way is to check
your proof against the original reports—not against your original notes! It is
very easy indeed for a judge to lose interest in your brief if, because of a
mistake in the citation, he can't find the case you cite. He may take a keen
interest in you after such an experience, i.e., to see what manner of would-
be lawyer this is who writes such sloppy briefs, but he probably won't
concentrate very hard on your brief after that.
Similarly, misspelling the name of a well-known case marks you as a
lawyer distinctly under par. When the case is a leading one in its field, and
one of the parties thereto a person of some prominence, as for instance the
case of Philadelphia Co. v. Stimson, 223 U. S. 605, which was brought
against Mr. Henry L. Stimson during his first tour of duty as Secretary of
War and which is still a leading authority in the area of suits-against-the-
United States,105 then, if you cite it as Philadelphia Co. v. Stimpson, it
marks you as distinctly under par professionally. (I should add that this is
not an imaginary illustration.)
When you check your citations from the manuscript, it is well to correct
any deviations from the running-head standards discussed in Section 72,
above. However, if you are already in proof, substantial accuracy alone
need be looked for; it is not fair to a client, even a rich client, to make him
bear the cost of proof corrections simply for the sake of consistency in the
style of running heads in the cases cited.
105
See, e.g., Harmon v. Brucker, 355 U. S. 579, 582; Anti-Fascist
Committee v. McGrath, 341 U. S. 123, 141, 156; Larson v. Domestic ir
Foreign Corp., 337 U. S. 682, 690-691, 699-700, 708, 716; Williams v.
Fanning, 332 U. S. 490, 493; Land v. Dollar, 330 U. S. 731, 736, 737,
742.
And, finally, if you fail to use that indispensable tool of legal research,
Shepard's Citations, you are apt to commit the unpardonable legal sin of
citing an overruled case. Your face will then be as red as Shepard's
Citations' own scarlet covers, any court is bound to mistrust anything you
say thereafter, and certainly the incident will not help your case.106
So—check citations, check names of cases, and Shepardize everything in
the brief. Any time you think these steps aren't necessary, some avoidable
mistake will happen along and prove that they are!

Section 77. Use of quotations.

—It is a good, sound rule of thumb that quotations from opinions should
be included only when they add something, and that, whenever possible,
they should be short rather than long. But I cannot at all agree that they
should invariably be omitted. (Compare the excerpt from Mr. Davis' paper
quoted in Section 68, above.)
After all, a good many judges read briefs while sitting in easy chairs, and
it is therefore going to advance your case if you quote enough pat matter to
satisfy their curiosity without discommoding them and making them get up
—particularly if their reading takes place where they do not have ready
access to the law library.
Sometimes limitations of space will automatically curb the number and
extent of your quotations. But, even when the length of a brief is unlimited,
I think that the question "To quote or not to quote" is essentially a matter of
judgment and proportion, not susceptible of being reduced to fixed rules
(compare Sections 68 and 69, above, as to number of citations), and that all
one can do is to formulate some standards. I venture the following:
 (a) Quote only when the quotation adds something. A good standard to
follow is to use a quotation whenever a court has said something as well or
better than you are able to do on your own, or, pre-eminently, when some
judge of acknowledged authority says what you are trying to say in
language more striking or more dramatic than a journeyman lawyer writing
a brief would feel free to use. A good illustration, for the first instance, is
the quotation from Chief Justice Taney at p. 219, above; and, for the
second, the Holmes quotation at p. 216.
106On occasion, judges fail to Shepardize. See In re Yokoyama, 170 F.
Supp. 467, 473, note 25 (S. D. Calif.; Jan. 28, 1959), citing Kinsella v.
Krueger, 351 U. S. 470, without any apparent realization that this opinion
had been withdrawn on rehearing some two and a half years earlier, on
June 10, 1957, and that the judgment below, originally affirmed, was
then reversed. 354 U. S. 1.
Cf. Oklahoma Packing Co. v. Gas Co., 308 U. S. 530, 309 U. S. 4, 7-
8, 309 U. S. 703, 705-709.
(b) Always quote when the mere statement of the case's holding whets
but does not satisfy the reader's curiosity.
(c) Never quote hornbook propositions (except in the very rare instance
where a lower court has utterly disregarded hornbook law) .
(d) Never, never, NEVER, quote sentences out of context. To do so is an
unpardonable professional sin; besides, it leaves you wide open to being
shown up by the opposition.
(e) In at least four instances, or so it seems to me, fairly extensive
quotations are justified in any court:
First, when you are relying on temporarily unfamiliar decisions, and you
need to recall the exact ratio decidendi to the court's mind. Thus, in Testa v.
Katt,107 the question was whether a State could refuse to enforce in its
courts a cause of action arising under a Federal statute where that cause of
action was in conflict with the public policy of the State. The point had not
arisen for thirty years, and so it was considered helpful to include in the
Government's brief rather long quotations from the opinions in the two
leading cases, Second Employers Liability Cases,108 and Minneapolis if St.
Louis R. R. v. Bombolis.109 Those quotations served to bring the reasoning
of those decisions to the judges' attention, without unduly taxing either their
memories or their comfort. Omission of the quotations, in the
circumstances, would have made the brief much harder to follow—and of
course Chief Justice White's rolling periods in the Bombolis case could not
have been either profitably or intelligibly rendered in small compass.
Second, when you are relying on materials not readily accessible. For
instance, in the Haupt treason case,110 the Government quoted extensively
from Howell's State Trials; no library has more than one set, and it was
necessary to bring the cases to the attention of nine judges. Similarly,
Government briefs in a number of military law cases in the late 1940's
quoted extensively from the opinions of Army Boards of Review.111 In
those days, only the Army had such Boards,112 and their opinions were not
printed, only multilithed, and in such limited quantities that they were not
available in even the largest law libraries. In order to bring them fairly to
the attention of the courts, it was therefore necessary to set them out at
length in the briefs. Today, when all the armed forces have Boards of
Review,113 whose opinions are published in the C.M.R. series, similarly
extensive quotations would be neither necessary nor justified.
107 330 U. S. 386. 108223 U.S. 1.
109 241 U. S. 211.
110 Haupt v. United States, 330 U. S. 631.
Third, when you are dealing with documents or exhibits in a long record
—papers that cannot fairly be summarized. Thus, in the Government's brief
in the Line Material reargument,114 the memoranda and documents leading
up to the cross-license agreements there considered were very fully set out.
It was difficult, perhaps impossible, fairly to characterize all the nuances of
the many vital exhibits involved, and the record was so bulky that even the
most conscientious of judges would be disinclined to hunt for the originals.
Indeed, in that particular brief, which extended to 159 pages, the first 153
pages were devoted exclusively to argument on the facts.
Fourth, when it is necessary to go back to the fundamentals in a situation
where a concept originally formulated has been imperceptibly altered in a
series of later decisions, and the briefwriter is endeavoring to persuade the
court to return to orthodoxy. Thus, in Parsons v. Smith,115 which involved
the right of a contractor mining coal to a deduction for percentage depletion
on the footing that he had an "economic interest" in the enterprise, a lessee
as amicus curiae undertook to show, illustrating his argument with copious
quotations, that the original concept was "economic interest in the mineral
in place representing a capital investment," that the contractor could not
show that he had made any such investment, and that he was therefore not
entitled to any share of the depletion allowance. The Court agreed with
amicus curiae, from which it may be inferred that it found the quotations
useful.116
111E.g., Humphrey v. Smith, 336 U. S. 695; Henry v. Hodges, 171 F.
2d 401 (C.A. 2), certiorari denied sub nom. Henry v. Smith, 336 U. S.
968; DeWar v. Hunter, 170 F. 2d 993 (C.A. 10), certiorari denied, 337 U.
S. 908.
112
Pursuant to Article of War 50i/2 of 1920 (10 U.S.C. [1926 through
1946 eds.] § 1522); Article of War 50 of 1948 (10 U.S.C. [Supp. II to
1946 ed.] § 1521).
113 Art. 66, Uniform Code of Military Justice, now 10 U.S.C. § 866.
114 United States v. Line Material Co., 333 U. S. 287.
115 359 U. S. 215.
But, as I say, it is all a matter of judgment and proportion, depending on
the nature and needs of the particular case.

Section 78. Quotations; accuracy of quotations.

—The caution that all citations must be checked is peculiarly applicable
to quotations. Unless every quotation is carefully read, each against the
original, significant words will become distorted, and, likely as not, whole
lines will drop out.
After all, consider how quotations get into a brief. Your stenographer
copies them from either the original record or report, or, in many instances,
from your copy of the original (in which event you may well have
contributed some slips of your own). Even if she is a trained legal
stenographer, she is not a lawyer; the context of the quotation, particularly
when the subject-matter is dry and uninteresting, will not arouse her most
intense absorption; she may be and frequently is thinking about her current
boy friend and similar emotional uncertainties; and—notwithstanding the
XIX Amendment, mankind still must struggle with the fallibility of female
functionaries. So—check against the original. You will kick yourself
mentally around the courthouse square any time you neglect to do so—and
it won't help your reputation for accuracy either.

Section 79. Footnotes.

—Perhaps no single implement of all the vast apparatus of scholarship is
so thoroughly misused in the law as the footnote. There may be some
justification in the manifold areas of the academic world for that formidable
display of learning and industry, the thin stream of text meandering in a
vale of footnotes, but such a technique is quite self-defeating in the law: it
makes the writer's thoughts more difficult to follow— and hence far less
likely to persuade the judicial reader.
The worst offenders on this score are undoubtedly the law reviews,
whose student editors have at least the excuse of being still at the apprentice
stage, and whose faculty editors may have had but insufficient opportunity
to gain firsthand acquaintance with judicial psychology. Next in order are
the attorneys at law who are not lawyers but who like to make a show of
erudition.
no jror (jjg details of the problem, see my paper on "Economic Interest"
—The Rise and Fall of a Slogan, 37 TAXES 777.
It is entirely proper, and indeed helpful, to use footnotes in a brief (a) to
indicate qualifications to statements in the text, where such qualifications
would interrupt the thought if they remained in the text, and (b) to include
citations on points of secondary importance.
On occasion, some lawyers relegate to a footnote their reply to particular
arguments made by the opposing party. This is a risky technique, which is
proper only in very limited situations.
In the usual instance, yielding to the temptation to minimize the other
side's contentions by giving them footnote treatment will lead counsel into
the error of dealing inadequately with important issues. In that situation—
see the examples discussed in Section 35 (d), above—the usual result is that
the footnote technique backfires.
It is only when a particular argument is totally lacking in factual record
support that it is safe to dispose of it in a footnote; see the example set out
at pp. 254-256, below, where, with the text emphasizing the facts of record
to show that the other side's primary contention was never reached, footnote
reply proved entirely adequate.
But unless the opposition's argument is, as in the last cited instance,
utterly devoid of support in the record, it deserves reply in the text of your
brief, and it is only your case that will be hurt when you drop your own
views down to a footnote.
It is similarly improper, and it can similarly be of distinct disservice to
your cause, to use footnotes as a means of setting out a parallel line of
argument. Whenever you do that, you detract appreciably from the force of
your contentions—and you may do serious damage to an important
principle.
An unfortunate example of this double-stream-of-argument employment
of footnotes appeared in the Government's brief in the Schneiderman
denaturalization case.117 The question was the meaning of the expression in
the naturalization laws, "attached to the principles of the Constitution of the
United States," which has been on the books since 1795.118 It was sought to
show, by presentation of the legislative history, that the phrase meant more
than mere law-abiding acceptance of American government by one who did
not at heart believe in a republican form of government—and the legislative
history in fact showed that very clearly.119 But by dividing up the legislative
history materials between text and footnote, the argument could not easily
be followed, was weakened, and in the end failed to persuade the Court.120
A few years later, in the Knauer case,121 the same materials were set forth,
without substantial additions of material but in one consecutive
argumentative screed 122—and the Court chose to decide the case on other
grounds.123
117 Schneiderman v. United States, 320 U. S. 118.
118Sec. 1, Thirdly, and Sec. 2 of the Act of Jan. 29, 1795, c. 20, 1 Stat.
414, 414-415; Sec. 1, Thirdly and Fourthly, of the Act of April 14, 1802,
c. 28, 2 Stat. 153, 154; R. S. § 2165, Third and Fifth; Sec. 4, Fourth, of
the Act of June 29, 1906, c. 3592, 34 Stat. 596, 598; Sec. 332 (a) (17) of
the Act of October 14, 1940, c. 876, 54 Stat. 1137, 1155; Sec. 316 (a) of
the Act of June 27, 1952, c. 477, 66 Stat. 163, 242 (8 U.S.C. § 1427 (a)).
119 James Madison had argued against the adoption of this requirement
in 1795, saying (4 Annals of Cong. 1023): "It was hard to make a man
swear that he preferred the Constitution of the United States, or to give
any general opinion, because he may, in his own private judgment, think
Monarchy or Aristocracy better, and yet be honestly determined to
support this Government as he finds it." But Congress adopted the
requirement over Madison's objections (id.).
120See the reference at 320 U. S. 118, 133, n. 12, to "the discursive
debates on the 1795 Act."
121 Knauer v. United States, 328 U. S. 654.
122 Brief for the United States, No. 510, Oct. T. 1945. The portions
thereof relevant here were set forth at pp. 417-426 of the earlier version
of this book; the substance of what was there printed also appears,
somewhat expanded, in my paper on "Freedom for the Thought That We
Hate": Is it a Principle of the Constitution?, 27 A.B.A.J. 177 (1951).
123 Judge Learned Hand had said, in United States v. Rossler, 144 F. 2d
463, 465 (C.A. 2): "That attachment to the principles of the Constitution
which the law exacts at naturalization is not addressed to the heart; it
demands no affection for, or even approval of, a democratic system of
government; but merely an acceptance of the fundamental political habits
and attitudes which here prevail, and a willingness to obey the laws
which may result from them." The difficulty with this approach is that it
requires the applicant for citizenship merely to be law-abiding—which is
of course all that is required of any alien; for every alien dwelling here
owes a temporary allegiance to the United States, so much so that, if he
fails in that allegiance and extends aid and comfort to the enemy, he
commits an act of treason. Carlisle v. United States, 16 Wall. 147;
Radich v. Hutchins, 95 U. S. 210. Speaking for the First Circuit,
therefore, Judge Magruder very properly declined to follow the Rossler
case. See Stasiukevich v. Nicolls, 168 F. 2d 474, 477 (C.A. 1).
 A similar weakening of a good case through too great use of footnotes,
this time in the Statement of Facts, occurred in Von Moltke v. Gillies.1^ In
Chapter XII, pp. 397-421, below, two versions of the Statement of Facts in
that case are set forth, one with much of the relevant testimony appearing in
footnotes, the other with all of it brought up into the text, with the use of
only a very few tangential footnotes. Study those two examples, and see for
yourself how in text there is strength, in footnotes weakness.

Section 80. Record references.

—Remember, in connection with citing exhibits, that the rules of some
courts require you to state, not only the page at which the exhibit appears in
the record, but also the page at which it was offered in evidence.125 The
reason for this requirement is that, when the members of the court read an
exhibit in the record—and exhibits are normally printed separately from the
testimony—they want to know, without having to search a long record,
what was said when that exhibit was offered, and whether it was admitted
generally or only for a limited purpose.
At the risk of offensive repetition, I will emphasize again the matter
discussed in Section 44, above: the imperative and absolute necessity for
backing up every assertion of fact in your Statement of Facts with a record
reference to show that what you say is established by the record and is not
simply conjured up out of thin air, whole cloth, and similar material of
spontaneous generation. It is well, too, to repeat the record references when
you repeat the assertion in the Argument, certainly when the point is critical
or even of substantial importance. At that latter juncture, when the judicial
reader is bound to catch the significance of the asserted fact, his curiosity
will be aroused. Don't make him thumb back to try to find the particular
reference in a long Statement of Facts, and don't lead him on a species of
treasure hunt with a tantalizing "(supra, p. 16) ." Have the reference right
there so that he can turn to it immediately: "(R. 298)." Remember also that a
Statement of Facts or an Argument richly sprinkled with record references
will always have a very reassuring effect on any legal reader.
There are also instances when the use of record references will enable
you to adopt, to your advantage, the factual portions of the opinion below as
your own Statement of Facts.
 124 332 U. S. 708.
125
Supreme Court Rule 40 (2); Eighth Circuit, Rule 11 (b) (Third);
Ninth Circuit, Rule 18 (2) (d) .
(1) Suppose you are the appellee in a non-jury case where, pursuant to
Rule 52 (a), F.R. Civ. P., the judge has written an opinion without making
additional findings of fact. Since, under the same Rule, those findings will
not be set aside unless "clearly erroneous," you can virtually win the case
with a Statement of Facts that quotes the opinion and inserts record
references in square brackets to support every sentence that the judge wrote.
(2) Or, suppose that you are the appellant in a case turning on a mixed
question of law and fact, and you wish to concentrate on the law without
cluttering up your argument with minor factual differences. Use the same
technique; commence the Statement of Facts in your brief by saying, "For
purposes of this appeal we accept the facts as set forth in the opinion of the
court below (R. 249-253)," and then just copy that opinion, interpolating
bracketed record references in support of every assertion made therein.
And, here again, as in connection with citations and quotations, absolute
and unswerving accuracy must be the goal; inaccuracies, particularly
inaccuracies of substance, are generally unforgivable and always dangerous.
A court particularly dislikes a citation to fact A when all that the citation
establishes is fact B, from which you proceed to draw an inference that fact
A exists.126
So—have all record references checked, preferably by a person other
than the one who has written the brief. Such others are invariably better
proofreaders than the brief-writer—the latter is always unconsciously
inclined to see the mental image of what the word or citation should be
rather than the strictly visual image of what is actually is. Moreover, having
some one else do the checking insures independent scrutiny. It is much
better to have your text questioned and doubted by an office associate in the
first instance than by a court.
126See these comments by the late Chief Justice Vanderbilt of New
Jersey, who played such an active part in the drafting of the Federal
Rules of Civil and Criminal Procedure:
 "Even more inexcusable than defective documentation of the facts is
the habit indulged in by some counsel of citing page and line for a
statement of fact when a reading of the page and line cited does not
sustain the point for which it is cited, but only some inference which
counsel seeks to draw from the testimony. When counsel is referring to
testimony to sustain facts testified to, all he needs to do is cite page and
line. But when he is asking the court to make an inference from the
testimony thus referred to, he should tell us not only what the inference
is, but from what the inference is drawn. There are plenty of words in the
English language to express the fact of inference. Nothing is more
annoying in studying a brief either as an advocate or a judge than to have
citations given which do not directly support the facts for which they are
cited." The New Rules of the Supreme Court on Appellate Procedure, 2
Rutgers Univ. L. Rev. 1, 27-28.

Section 81. Indicating emphasis.

—On occasion a court will adopt a rule forbidding the use of italics in
briefs; most courts, however, leave such matters to the judgment and good
taste of the brief-writer.
A sound general rule is to use italics sparingly. If they are used too freely
in the text of a brief, they are apt to be regarded as (what indeed they
frequently are in fact) insults to any judicial reader's intelligence. It is
perfectly possible to write a strong, forceful, even a fighting brief, without a
single word italicized for emphasis.
The most appropriate use for italics, by and large, is to point up a
particular passage in a quotation. At the very least, this will catch a reader's
eye, because a good many lawyers and judges who read legal matter almost
invariably tend to skip quotations at first reading.
In any event, never proceed beyond italics to capitals and worse, whether
in quotations or elsewhere in your text. I recall vividly a written comment
on a brief, made by a most able lawyer in the U. S. Solicitor General's
Office just before World War II: "and for the love of God, no bold face!"

Section 82. Going outside the record.

 —It is permissible to go outside the record in these instances:
(i) As to anything in the realm of judicial notice—and in some courts that
is a broad domain indeed.127 Remember that judicial notice means that no
evidence need be presented; consequently, even on motion to dismiss,
counsel may properly hand up, as an exhibit for the convenience of the
court, matter that may be so noticed. This may seem too elementary to be
mentioned, nor would it have been, but for the circumstance that the
Supreme Court in a very recent case was required to reaffirm the
principle.128
127See, e.g., 9 Wigmore, Evidence (3d ed. 1940) § § 2565-2583;
Morgan, Judicial Notice, 57 Harv. L. Rev. 269; compare 2 Davis,
Administrative Law Treatise (1958) chap. 15 (Official Notice).
For some interesting recent examples of the scope of judicial notice,
see Ussery v. Anderson-Tully Co., 122 F. Supp. 115, 122-123 (E. D.
Ark.); Bruni v. Dulles, 121 F. Supp. 601, 603 (D.D.C.); Calmar S. S.
Corp. v. Scott, 197 F. 2d 795, 797 (C.A. 2).
(ii) In the Supreme Court of the United States, as to administrative
practice. That tribunal goes further than most other courts in receiving
outside-the-record proof of administrative practice and will give due and
careful weight to official letters setting forth such practice 129—always
provided, of course, that they are not simply self-serving assertions of
power. Compare Section 60 (b), above.
(iii) As to anything showing or tending to show that the controversy has
become moot.130
(iv) In some courts, as to almost anything resting in official files.131
128 See Alaska v. American Can Co., 358 U. S. 224, 226-227, taking
judicial notice of the Journals of the then Territorial House and Senate
and of a House bill, over respondents' objections that a court cannot
judicially notice legislative drafts, and reversing both courts below,
which had sustained those objections on various grounds; see 246 F. 2d
493, 499-500 (C.A. 9), and 137 F. Supp. 181, 185 (D. Alaska).
129 See, e.g., Vermilya-Brown Co. v. Connell, 335 U. S. 377; Foley
Bros. v. Filardo, 336 U.S. 281.
 Frequently the Court asks counsel to submit available materials as to
such practice. Thus, in the Hackfeld case, Rodiek v. United States, 315 U.
S. 783, the Court at the oral argument requested the Government to file
material supporting its assertion that the administrative practice under the
Trading with the Enemy Act was to recognize the right of a claimant to
bring suit under Sections 9 (50 U.S.C. App. § 9) even if his claim had
been disallowed by the President or by the officer to whom the President
had delegated his authority.
For an instance of the Supreme Court's notice of administrative
practice on its own motion, see Fisher Music Co. v. Witmark ir Sons, 318
U. S. 643, 657-658.
130 The Supreme Court allows the greatest latitude in bringing such
facts to its attention. For a discussion of available methods, with full
citations to cases, see Robertson and Kirkham, Jurisdiction of the
Supreme Court of the United States (Kurland & Wolfson ed., 1951) §
275.
For a striking recent example, see Taylor v. McElroy, 360 U. S. 709.
131 Thus, in Red Canyon Sheep Co. v. Ickes, 69 App. D. C. 27, 98 F.
2d 308, the court judicially noticed certain proceedings in the Interior
Department, including an unpublished Solicitor's opinion. In that case,
counsel for the Secretary asked the court to go that far in order to be able
to move to dismiss, and to avoid trial. At the present time, the same
result can be obtained simply by moving for summary judgment, and by
bringing the relevant papers to the attention of the court in a covering
affidavit, under Rule 56 or Rule 12 (b), F. R. Civ. P.
(v) As to anything in the particular court's own files.132
(vi) Possibly, but sparingly, in other situations. Thus, in the Trailmobile
case,133 where a returned veteran was the unfortunate victim of a bitter
dispute between rival unions, the Government (representing the veteran) set
out in its brief—and at the argument—relevant matters that had occurred
since the ruling below.134 But that is probably the verge of the law; even
there the foregoing departures from the record encountered hard going.
Subject to the foregoing, you depart from the record at your peril. The
courts will not listen to details resting only in the knowledge of the brief-
writer, and generally resent any such efforts to supplement the record, for
this very good reason: such efforts turn the advocate into an unsworn
witness for his client.
Similarly, once your appellate record is made up, you cannot hope
successfully to supplement it by adding documents that would have been
relevant and admissible at the trial. Recently, when the Government
attempted thus to pretty up a case in the Supreme Court by filing additional
documents with the Clerk, the other side moved to strike not only those
documents but also the portions of the Government's brief relating thereto
—and that motion was granted in full.135

Section 83. "Things you cannot afford to do."

—The four outstanding faults of brief-writers, in my judgment, are (a)
inexcusable inaccuracy; (b) unsupported hyperbole; (c) unwarranted
screaming; and (d) personalities and scandalous matter.
They are don'ts, not only from the point of view of one's own
professional standards and self-respect, but also from the narrow aspect of
intelligent self-interest: every one of these faults is bound to backfire in the
most unpleasant and costly way.
132E.g., National F. Ins. Co. v. Thompson, 281 U. S. 331; United
States v. Pink, 315 U. S. 203, 216, and cases there cited. 133Trailmobile
Co. v. Whirls, 331 U. S. 40.
134 E.g., that, after the entry of the C. C. A. decree adverse to the
Union, the Union suspended Whirls from membership and requested the
Company to suspend him from work; and that the Company, while
telling Whirls not to report to work, had none the less kept him on the
payroll, on leave of absence with full pay.
135See Lawn v. United States, 355 U. S. 339, 354: "In that connection
[the Government] has filed here what is said to be a transcript of a
hearing accorded to Lawn at his request on May 12, 1952, which it says
contains photostatic copies of the check and check stub in question
voluntarily produced by Lawn. Lawn has moved to strike that transcript
and the portions of the Government's brief relating thereto. That motion
 must be sustained as we must look only to the certified record in
deciding questions presented. McClellan v. Carland, 217 U. S. 268."
Below are listed some examples of these faults that I have encountered.
In each of the instances I have indicated what the other side was able to do
by way of reply; in none of these instances did success rest with the
offending party.
(a) Inexcusable inaccuracy. In one case of conspiracy, which for a
number of reasons need not be more particularly identified, the charge was
that two of the defendants, who will be called the Smiths, conspired to
defraud the Government of the faithful services of an officer, who shall be
called Captain Jones.
At an appellate stage, the Smiths, whose defense was that certain
payments by them to Captain Jones had been extorted by him, complained
of the trial judge's failure to charge the jury that, if they found the payments
had been extorted, there would be no basis for any finding of conspiracy.
The Smiths' handling of this contention is perhaps best shown reflexly,
by setting out the answering excerpt from the prosecution's reply brief:
The Smiths complain at some length that the trial court's charge as to the
basic issues concerning them was inadequate (Br. 18-24). They say (Br. 20)
—
As regards the Smiths, the basic issue in the case was whether or not the
payments had been extorted by Captain Jones by threats to violate his duty,
or had been made pursuant to conspiracy to seduce Jones from fulfilling his
duty.
They then go on to quote three sentences from the court's charge (Br. 21,
22, 23), and conclude (Br. 21) —
It will be observed that there was no statement by the Trial Court
anywhere in the charge that the jury could find that there would in law be
no conspiracy or agreement on the part of the Smiths as charged in the
indictment if the jury believed the contention of the defense, namely, that
the Smiths were the victims of a shrewd and ruthless plan of extortion. The
difficulty with considering particular isolated sentences of a charge instead
of the charge as a whole, or even a portion of the charge, is that important
aspects are apt to be overlooked. The Smiths' sampling technique in this
instance has produced the very consequences which might have been
anticipated; they failed to note that the trial judge did in fact charge on the
precise point with which they were concerned. He added, following the
sentence quoted by the Smiths at Br. 22, and preceding the sentence quoted
by the Smiths at Br. 23, the following (R. 1134):
However, as to the payments of money, if you believe that they were
coerced by the defendant Jones, that is, that they would not have been made
at all in whole or in part except for Jones' threats, then such payments
would not be the result of agreement nor any evidence of a crime. And if
you so believe, and also are not satisfied beyond a reasonable doubt by
other evidence in the case that the conspiracy existed as charged in the
indictment, you should find all the defendants not guilty, as Jones is not
here charged with extortion.
The foregoing intervening excerpt is nowhere quoted in the Smiths' brief.
Well, the Smiths went to jail. And, apart from any question of
professional standards, it was a fact that, had the trial judge's charge been
set out in full, without omissions, the omitted sentence would not have
appeared to do nearly so full justice to the Smiths' theory as isolating it in
the reply brief did.
(b) Unsupported hyperbole. Whenever a lawyer exaggerates any
substantial distance beyond the record, he is simply asking for trouble—and
the greater the exaggeration, the more devastating the impact of the
inevitable reply.
I have in mind a criminal case involving tax evasion, where the essential
defense was that the petitioners had made a disclosure of their tax
discrepancies, so that, they contended, they had obtained immunity from
prosecution. In their brief they stated that the court below wholly failed to
consider the important and undisputed facts pertinent to the question
whether the Petitioners' confession, unique for frankness and completeness,
was induced by the Treasury Department's promise of immunity.
This assertion, that the petitioners' confession was "unique for frankness
and completeness," really left the lads wide open. Here are the answering
paragraphs from the prosecution's brief:
 1. The District Court found as a fact that "at no time between February
28, 1945 and April 25, 1945, was any act of the defendants or of the
corporate taxpayers prompted or brought about by any inducement held out
to them by any person in authority or any person connected with the
government" (Fdg. 19, R. 2176), and that "at no time" during those dates
"were the defendants or the corporate taxpayers coerced or compelled or
induced, either with or without process, to make incriminatory disclosures"
(Fdg. 20, R. 2177).
The District Court likewise found as a fact that the March currency
redeposits "were prompted by the belief that currency in bills of large
denominations might in effect become contraband and not by any desire or
intention voluntarily to disclose frauds on the revenue" (Fdg. 19, R. 2176),
and that the filing of two additional fraudulent tax returns after substantial
redeposits of currency had been made "conclusively establishes that the
redeposit of currency was no evidence of any intention on the part of the
defendants or the corporate taxpayers to make voluntary disclosure of the
frauds theretofore practiced," and "that said redeposits had no connection
with or bearing upon crimes against the revenue" (Fdg. 24, R. 2178). The
Circuit Court of Appeals characterized the contention that the making of
these deposits amounted to a voluntary disclosure in response to a promise
of immunity as "fantastic" (R. 2196).
The District Court further found that "Neither the defendants nor the
corporate taxpayers at any time prior to April 25, 1945 disclosed the
fraudulent practices of the corporate taxpayers to any government official"
(Fdg. 18, R. 2176), and also specifically found that statements submitted in
affidavits to the effect that "voluntary disclosure" was discussed between E.
Allan X and Collector P on March 26, April 10, 20, and 24, were false
(Ibid.). The Circuit Court of Appeals thought it "clear" that "the
investigation began at the latest on March 24, 1945" (R. 2197-2198).
The first disclosure was that contained in the letters of April 25, 1945 (R.
2123-2124; see also R. 134), which contained an invitation to examine the
corporate taxpayers' books. Those letters, the District Court found, "were
not frank and full disclosures, were not voluntarily made, and were
delivered at a time when the defendants well knew that an investigation of
their affairs and those of the corporate taxpayers had actually been initiated"
(Fdg. 22, R. 2177-2178). "On April 25, 1945, the extent of the frauds
practiced by the corporate taxpayers was not disclosed" (Fdg. 14, R. 2175).
These "belated and partial revelations" (Fdg. 23, R. 2178) were "prompted
solely by the fact that the defendants and the corporate taxpayers knew that
an investigation of their affairs had begun and that an Internal Revenue
Agent had made an appointment, deferred at the request of the defendants
and of the corporate taxpayers, to commence an examination of the books
of the defendant Henry X on April 23, 1945"
(Fdg. 19, R. 2176-2177) . The subsequent investigation of the books of the
corporate taxpayers, between May and August 1945 "was invited by the
defendants and by the corporate taxpayers with full knowledge that an
investigation had been commenced which would lead to the discovery of
fraudulent entries in the books of the corporate taxpayers, and with full
knowledge of the fact that said investigation could be commenced and
continued with or without the consent of the defendants or the corporate
taxpayers" (Fdg. 21, R. 2177).
The Circuit Court of Appeals likewise noted "that the corporate records
were in no sense the result of any promise of immunity. They were
furnished long after the government investigation had begun" (R. 2198).
These concurrent findings, accurately reflecting the record (see
Statement, supra, pp. 13-23), need not be independently reviewed here.
Goldman v. United States, 316 U. S. 129, 135, cf. United States v. Johnson,
319 U. S. 503, 518; Delaney v. United States, 263 U. S. 586, 589-590. They
made it abundantly clear that the questions suggested by the petition are
academic, without actual relationship to the present record. Those questions
happen to be without any substantive merit,* though that is now beside the
point. But it may be noted in leaving this aspect of the case that,
considering all the circumstances, petitioners' reference to their April 25
letters as "confessions, unique for frankness and completeness" (Pet. 27),
involves not so much hyperbole as irony.
Review was, of course, denied; and if the lawyers who penned the
quotation in question had any sensibilities at all, they must (at least
figuratively) have been eating off the mantelpiece for days and days.
So—don't exaggerate or overstate; the farther your departure from the
record, the more painful the return trip will be. Consequently, whenever you
are tempted to go all out for hyperbole, remember the classic admonition to
"take a pillow along, so that when you get thrown out of court you'll land
soft."
* Even if petitioners had made full disclosure, it is clear, as charged by
the trial court, that prosecution would not be foreclosed. Whiskey Cases,
99 U. S. 594; United States v. Blaisdell, 3 Ben. 132, Fed. Case No.
14,608
(S.D.N.Y.); cf. Gladstone v. United States, 248 Fed. 117 (CCA. 9),
certiorari denied, 247 U. S. 521; United States v. McCormick, 67 F. 2d
867
(CCA. 2), certiorari denied, 291 U. S. 662. The most authoritative
formulation of the voluntary disclosure policy merely implies a self-
imposed administrative limitation by the Treasury Department not to
refer cases to the Department of Justice for prosecution. Actually, it
would seem that there would be nothing to prevent an indictment without
referral. Cf. United States v. Morgan, 222 U. S. 274. Here there is no
suggestion that the Department of Justice effected a compromise after
indictment, see Executive Order No. 6166
(supra, pp. 3-4), and the suggestion that there was any earlier
Compromise by the Treasury Department under Section 3761 of the
Internal Revenue Code (supra, pp. 2-3), was correctly characterized by
the court below as "illusory" (R. 2199), on the authority of Botany Mills
v. United States, 278 U. S. 282. [Footnote from the brief, written when
the intermediate Federal courts were still Circuit Courts of Appeals.]
(c) Unwarranted screaming. Exaggeration comes in both plain and fancy
types. The latter model, which can be recognized by its emotional content,
is now and doubtless always will be popular with crusaders.
There comes to mind a petition that raised certain questions involved in
an expulsion from the West Coast by the military. It raised some difficult
questions, too; but petitioner's counsel chose to slop over, as follows:
It is a fair inference that in regard to the forcible expulsion, as in regard
to the denial of a right to hearing (supra, pp. 16-20), respondent was chiefly
interested in an assertion of the breadth of military power, rather than in a
fear of harm to the country by petitioner.
 Not only was that passage unnecessary, it was extremely unwise, because
on the question of good faith and good motives, respondent was on
impregnable ground—as his brief was at pains to point out:
3. * * * Respondent's removal of petitioner through the use of military
personnel was specifically and expressly authorized by Secretary of War
Stimson, by Assistant Secretary of War McCloy, and by General Marshall
(R. 265-266). Moreover, he had been advised both by the Attorney General
of the United States and by the Judge Advocate General of the Army that he
could lawfully exercise such power (R. 248, 254). Respondent did not
remove petitioner from California to Nevada until petitioner had prosecuted
his injunction proceeding in the district court, seeking to enjoin respondent
from "directly or indirectly by any means, method or device whatsoever
from executing or causing to be executed" the exclusion order here in
question (R. 247). The right to use military personnel in carrying out the
order had been asserted before the court in the injunction proceeding (R.
256257). Not until the district court had denied petitioner's suit for an
injunction and had given judgment for respondent did the latter proceed to
enforcement. Furthermore, as the district court in the present case
concluded, respondent "acted in good faith and with the highest motives,
and with an honest belief that Executive Order 9066 and Law 503
empowered him to lawfully do and direct" the acts and things for which it is
here attempted to hold him liable (R. 299-300).
 Similar findings of good faith and reasonableness were made by the
district court in the injunction case (R. 278-279, 281-282) and by the circuit
court of appeals here (R. 337-338).
The temptation to indulge in a bit of counterscreaming was strong, but
counsel refrained, adding only the following footnote at the end of the
second paragraph just quoted.
In view of those findings, and in the face of other findings that the action
here was taken pursuant to legal advice and after express approval by
General DeWitt's military and civil superiors (supra, pp. 7, 11-12), the
statement in the petition (Pet. 31) that "respondent was chiefly interested in
an assertion of the breadth of military power, rather than in a fear of harm to
the country of petitioner" is of course wholly unwarranted.
Review was denied; in other words, petitioner's screaming, shown to
have been unsupported by the record, simply backfired. Indeed, it
approached and all but entered the realm of angry personalities.
(d) Personalities and scandalous matter. The argument ad hominem in a
brief is always unpardonable, not simply because it is something no
decently constituted brief-writer would include, but because, like all the
other faults, it fails of its purpose: appellate courts have a hard enough time
deciding the merits of the cases presented to them without embarking on
collateral inquiries as to the personality or conduct of the lawyers involved.
They recoil from any attempt even to ask them to consider such matters,
and are always embarrassed by the request. So—granted that your
opponent's disbarment is long overdue, granted in any event that his
conduct in the particular case was shameful and thoroughly unprofessional,
take those matters up with the grievance committee, and don't inject them
into either the written or the oral argument of an appeal.136
In much the same category, at least in my judgment, is the constant use of
the adjective "learned" when referring to the judge or to the court below. A
little reflection will show that it is always used, or very nearly so, as biting
sarcasm. It adds nothing; it had better be omitted.
136"It should be noted the counsel for both sides in their briefs would
have made more effective presentations had they devoted less attention
to each other's shortcomings as lawyers. They should know that this is
 the sort of thing of which a court gets tired." Tele-King Distributing Co.
v. Wyle, 218 F. 2d 940, 943 (C.A. 9).
At the other extreme is the use of "honorable"—"we therefore submit that
this Honorable Court should reverse the judgment below." Better leave that
to the bailiff, who starts with "Oyez, oyez, oyez"—the last vestigial remnant
of Anglo-Norman and Law French in American law—and who concludes,
"God save the United States and this Honorable Court." Make it a rule to
omit that particular adjective from briefs; judges don't like being fawned
upon by members of the bar.
Finally, there are the two ultimate horribles. One is the brief which
violates the rule of conduct that written arguments, "though often in sharp
controversy, shall be gracious and respectful to both the court and opposing
counsel, and be in such words as may be properly addressed by one
gentleman to another." 137 The other is the brief that contains scandalous
matter, i.e., which imputes improper motives to counsel or to a court. On
occasion, such documents have resulted in disciplinary action, although
usually they are simply stricken, frequently on the court's own motion.138
Probably an example will be in order; here again, the violation will be
demonstrated reflexly, by setting forth the motion to strike that was filed
promptly after the offending brief was served:
137National Surety Co. v. Jarvis, 278 U. S. 610, 611, per Taft, C. J.
Compare United States v. Miller, 233 F. 2d 171, 172, note 1 (C.A. 2): "A
brief of a * * * purported 'friend of the court,' being a curious compound
of scurrility and irrelevance, the filing of which is not objected to by the
United States Attorney, may remain lodged in the files of the court as an
example of how lawyers should not act."
138See J. Sup. Ct., Oct. T. 1934, pp. 105, 149-150, 79 L. ed. 1714 (six
months' suspension and payment of a $250 fine); J. Sup. Ct., Oct. T.
1935, pp. 77, 159, 80 L. ed. 1411-1412, 1414 (rule to show cause why
counsel should not be disbarred; on counsel's apology, brief stricken, and
rule discharged); Missouri-K.-T. R. R. Co. v. Texas, 275 U. S. 494 (brief
stricken); Knight v. Bar Association, 321 U. S. 803 (brief stricken on
Court's own motion); Matter of Fletcher, 344 U. S. 862 (same).
 This problem seems to be a timelessly recurring one, as witness the
following from a case decided by the Third Circuit within the year
(citation advisedly omitted):
"The petition for rehearing filed by the attorneys for the petitioners
contains intemperate and gross language. The use of such language by
members of the bar in a petition to the court verges upon contemptuous
conduct. A repetition of such conduct on the part of counsel will bring
disciplinary action. The Clerk will be ordered to strike from the petition
the language in question."
Now comes the Solicitor General on behalf of the petitioner herein, and
prays that the respondent's Brief in Opposition to the Petition for a Writ of
Certiorari be stricken because it contains scandalous matter. Green v.
Elbert, 137 U. S. 615, 624; Royal Arcanum v. Green, 237 U. S. 531, 546-
547. Compare Cox v. Wood, 247 U. S. 3, 6-7, where, however, the language
seems to have been more restrained.
The principal objectionable passages in respondent's Brief in Opposition
in the present case are the following:
Petitioner sought to abuse and insult the intelligence of the Court of
Appeals by this same type of unsupportable claim which he must of
necessity know to be completely false. Yet he persists with this same
technique of urging unsupportable arguments which he must know to be
completely false in this Court again. It is outrageous that an officer of the U.
S. under oath to uphold the laws of the United States and supposedly
advised of the rudiments of ethical conduct should advance frivolous
argument merely for the purpose of delay and should dare to use so
contemptible and obviously dilatory a device which outrages common
decency. (P. 13.)
Petitioner then assaults (at p. 20, brief for petitioner) the importance of
title, a fundamental legal conception having vital necessity and meaning to
all free peoples, and countless consequences in the law of sales. He forgets
that United States v. Lee turned specifically on what he casually terms
"technical doctrines of passage of title." He asks this Court to brush aside
ownership of property as merely "technical." Many of his predecessors in
this immoral doctrine, who have regarded the ownership of another as
"technical," are filling our jails. (P. 18.)
 Toward the bottom of page 16, petitioner goes on in an attempt to place
himself above the law by insinuating that he has some celestial status that
removes him personally from the reach of the law to which "a recalcitrant
private vendor" would be subjected. This is indicative of petitioner's
concept of all law—namely, that he is above it, that he is the law himself,
and that he is immune from the enforcement of the law upon him by this or
any other Court.
* * * When the day comes that anyone in respondent's position cannot
resort to the Courts for protection of his property under law merely because
some bureaucrat seeks to hide his incompetence and injustice behind a
protecting shield of sovereign immunity, both liberty and reason shall have
perished from the land. (P. 15.)
The depths of petitioner's wilful ignorance of these boundaries of
sovereign immunity under a free constitution like ours is revealed by his
misuse of Goldberg v. Daniels, 231 U. S. 218. (P. 16.)
The sequel: an apology tendered in person, and a "Motion for Leave to
Withdraw" the offending document—which was promptly granted.139
The moral of all the foregoing is simply this, that unprofessional conduct
in appellate work just does not pay. I could put the matter on a higher plane,
of course, but this section is written for those whose minds may still be
open on the question.

Section 84. Signatures.

—Who shall sign a brief and how is a matter of court rules and—
preeminently—of local practice.
In some Federal courts, it is customary to add the firm name; in the
Supreme Court and in the District of Columbia Circuit, however, the
emphasis is on "individual names" and "individual counsel," 140 which
discourages (though it does not forbid) the addition of firm names. Since
the latter will not be carried into the reports, there is no advantage in adding
them; and it may well be doubted if their appearance enhances in any way
the impressiveness—or otherwise—of the brief's contents.
 The Supreme Court and two Circuits require that the signature of counsel
be followed by his office address.141 But, in any court, counsel is well
advised to add his address, for a very good reason. Suppose that someone
reads your masterpiece and wishes to consult you; how will he even know
under what city to look in Martindale-Hubbell simply from seeing your
name? (Of course, you may be so famous that every lawyer throughout the
land will know who and where you are, but in that event you won't mind
losing the bit of business that the absence of identification may involve.)
Only in the Fifth Circuit is it necessary to add a manuscript signature to
one of the required printed copies.142 Elsewhere there is no such
requirement for printed matter except, generally, for the certificate
necessary on petitions for rehearing,143 and, in the Supreme Court, for
printed motions other than motions to dismiss or affirm.144
139 The Supreme Court's Rules now carry a specific warning that
briefs containing scandalous matter "may be disregarded and stricken by
the court." Rule 40 (5).
140 Supreme Court Rule 39 (2); D. C. Circuit, Rule 17 (a) (5).
141Supreme Court Rule 39(2); Third Circuit, Rule 24(1) (e); D. C.
Circuit, Rule 17(a) (5).
142 Fifth Circuit, Rule 24 (1),
In the Second Circuit, following the practice in the New York State
courts, the people who sign as "Of Counsel" at the left are those actually
handling the case; in other courts, the names designated "Of Counsel" are
simply the forwarding lawyers or the lads who go on the brief primarily in a
junior capacity.
In the Second Circuit also, again following New York practice, it is
customary to print at the right-hand top of the cover of
the brief, "To be argued by ," giving his name. This is
obviously convenient for the judges and the clerk alike, but it is a
convention not followed anywhere else.
By way of summary: read your court rules, and, when there is no specific
provision, ascertain and be guided by the practice followed by the leaders of
the bar of the particular court concerned.

Section 85. Reply briefs.

—The basic question under this heading is whether any reply brief
should be filed at all.
Two circuits forbid the filing of reply briefs except to answer new points;
reargument of what already has appeared in the briefin-chief falls under the
ban.145 The late Mr. William D. Mitchell wrote that "It should be a rare case
where * * * a reply brief * * * is justified. In his brief * * * an appellant
should be able to cover adequately his own case and anticipate his
adversary's." 146 I entirely agree that—subject to the qualifications below—
reply briefs should be sparingly used.
(a) Normally, when the issues are clearly drawn, don't file a reply brief;
you only discourage the court by burdening it with more matter to read.
(b) When the other side fuzzes up the issues, and you can reclarify the
discussion with a short reply brief, it may well be helpful to do so.
(c) When the other side raises an entirely new point, and it is a point of
substance, by all means meet that new point in a reply brief.
143 See Section 147, below, at p. 372; and see examples of such
certificates appended to the petitions for rehearing that are set out in
Sections 170 and 173.
144 Supreme Court Rule 39 (2).
145 Seventh Circuit, Rule 17 (e); Tenth Circuit, Rule 19 (8).
146 Book Review, 64 Harv. L. Rev. 350, 351.
(d) When the court (or any member thereof) asks at the argument whether
you intend to file a supplemental memorandum on a particular question,
you must do so. Such an inquiry regardless of its tenor or form, is the
equivalent of a command.
If you decide not to file a reply brief, that solves the problem. If, on the
other hand, you feel that a last word is imperative, be sure that your reply
brief is short, that it is not simply a rehash of the same ground, and that it
hits hard. For instance:
The company's brief on reargument, filed October 8, 19— (hereinafter
cited as A.B. 2d Br.), fails almost completely to meet the contentions made
in the Government's main brief on reargument (cited as U. S. 2d Br.). In
addition, the company's brief at a number of places misstates the record.
We shall endeavor to deal, as summarily as possible, with the basic errors
contained in that brief, and thereafter with the specific matters in it which
seem in most urgent need of correction.

I. THE COMPANY'S BASIC MISCONCEPTIONS

The company's position rests upon three basic errors which reach to the
heart of the case.
First.—The Company's brief throughout proceeds on the assumption that
the Act of June 25, 19—, declares a common-law forfeiture. Yet, as we
have shown at some considerable length (Point I, U. S. 2d Br. 60-79), that
assumption is wholly without foundation. Our argument on that point is not
met, and the legislative material adduced in support of our construction of
the statute is entirely ignored. Indeed, the company in effect ignores
everything in the Act except the word "forfeited," and proceeds to impress
upon that word its own interpretation of a common-law forfeiture. This
basic fallacy underlies the whole of the company's brief, and necessarily
removes its arguments a considerable distance from the issues in the case.
The Company asserts (A.B. 2d Br. 43) that the United States took no
exception to the finding that the sales were made to the highest and best
bidders where the lands were situated. To the contrary, that finding was very
specifically objected to before it was made (R. 593, Objection 2).
The Company urges (A.B. 2d Br. 51) that "The United States, with full
knowledge, has waived all rights, if any, it ever had." No record references
are cited in support of this assertion, and we think that none are available.
An equally bold assertion appears at A. B. 2d Br. 62, where it is said that
the statement that second indemnity limits were laid down only at the
request of the company is incorrect. Again no record reference is cited; and
again the record (R. 805) proves the correctness of the Government's
statement.
It is, of course, extremely difficult for any lawyer to know whether,
having won his case after filing a reply brief, that document really
contributed anything to his ultimate success. The only ground for believing
that it may have done so would be in a situation where the court's opinion
plainly shows that it did not accept the contentions to which reply was
made.
Be sure that the headings of your reply brief, like those of your brief-in-
chief, are argumentative; see Section 30, above. There is nothing quite so
ineffective as a reply brief with headings that read "Replying to Point III,"
or "Replying to the Jurisdictional Argument." When appropriate, repeat the
headings already used; otherwise fashion new ones that are similarly
argumentative, in order to meet the additional contentions; and don't lapse
into blind or topical headings simply because you are writing a reply brief.
Finally, and this concerns only Supreme Court cases, is it desirable for
the party petitioning for certiorari to reply to the respondent's brief in
opposition? A petition for certiorari, preeminently, should anticipate the
other side's arguments; more than almost any other argumentative
document, it is strictly a oneshot proposition. The rules permit reply briefs
at this juncture,147 but most of them do little to swing the case into the
select category of "certiorari granted." In my own practice, I can point to
only a single instance where my petition was granted after a reply had been
filed. Even on that occasion, I would not for a moment argue post hoc,
propter hoc; all I can say is that at the time I felt that instant, brief
contradiction was necessary. In order that the reader may judge for himself,
the full text of that reply, entitled "Petitioner's Supplemental
Memorandum," is set forth below:
147 Supreme Court Rule 24 (4) .
This Memorandum is impelled by two material misstatements of fact in
the Government's Brief in Opposition.
I. A. The Solicitor General says (Br. Op. 7), * * * so far as we have been
able to determine, no basis for claim of privilege with respect to that
question [the identification question, "Who?"] was offered.
 B. The record shows precisely the opposite.
(1) Petitioner gave a full statement of his reasons for refusing to answer
all of the questions which remained unanswered, and that statement was,
with the consent of the prosecutor, incorporated into the Grand Jury
presentment. See R. 178a, which refers to Question 8, the "Who?" question
(R. 5a-6a).
(2) The full statement of petitioner's reasons for standing on his claim of
privilege appears at R. 131a-132a and again at R. 174a-176a. A portion—
but only a portion—of that statement is reproduced at Br. Op. 4-5. Here is
the last paragraph of petitioner's statement, which, as just noted, was
applied to the "Who?" question, but which the Solicitor General failed to
include in his brief (R. 132a, 176a):
My fear and apprehension that I would tend to incriminate myself is
based upon not only that which I have read in the newspapers * but also
upon the fact that Morton Witkin, Esq., of my counsel in whom I have great
trust and confidence, has advised me that it is his honest and sincere
opinion that were I to answer the questions referred to I would be
incriminating myself. I believe that his advice is sound and I choose to rely
upon it. May I say in conclusion that these two reasons are in addition to
and not exclusive of my own inherent belief of self-incrimination due to the
fact that I have knowledge of what my answers to the refused questions
would be.
(3) Petitioner's comprehensive offer of proof at the trial (R. 48a-53a),
which applied to all of the unanswered questions, disclosed additional
reasons for his failure to answer.
(4) After petitioner had been found guilty, and before sentence, his
counsel said, inter alia (R. 66a):

* The newspaper accounts (R. I96a-197a), which were received in

evidence at the trial (R. 56a), included the following:
Even though there are no Federal laws regarding numbers, slot machines
and other rackets, the probers will strike at such rings through the Federal
revenue and conspiracy laws, he [Goldschein] said.
 Income tax violations would permit the Government to strike indirectly
at racketeers whose activities are not covered by Federal criminal statutes.
[Footnote in original.]
* * * in one of the three questions that we failed to answer, the question
"Who," my argument was he would be giving the names of witnesses
against himself * * *
We have italicized the past tense to show that the argument had been
made earlier; it is not in the record because the full transcript was not
printed.
II. A. The Government's Brief in Opposition continues (Br. Op. 11):
Moreover, petitioner's apparently full statement of his reasons for
refusing to answer the identification question indicates no reason why the
disclosure of the names of the numbers writers would endanger him. The
reasons stated are all related to the telephone questions. This fact alone
would be enough to deny the privilege with respect to this question.
B. The same inaccuracies and omissions already noted under item I
permeate this excerpt also: Petitioner's reasons for refusing to answer
included an apprehension of self-incrimination based upon the newspaper
reports of the prosecutor's plan of reaching numbers operators through the
federal tax laws; they included the advice of petitioner's counsel; and they
included the fear that if he answered the question "Who?" he would be
supplying the prosecutor with the names of witnesses against himself.
As I say, I can't prove that the foregoing did the trick, but since certiorari
was granted and the judgment below was reversed five days after oral
argument, it is plain that, either by reading the supplemental memorandum
or otherwise, the Supreme Court was ultimately convinced that petitioner
had adequately established the basis for his claim of privilege.148

Section 86. After the reply brief.

—Some lawyers, like many women, are uneasy unless they have the last
word; and, after brooding over the argument, decide to file still one more
written document. Some courts do not permit the filing of anything after the
reply brief without special leave,149 and others similarly limit the filing of
any document whatever after the argument.150 What, then, is the lawyer
with the last-word-itch to do?
148United States v. Greenberg, 192 F. 2d 201 (C.A. 3), certiorari
granted, 342 U. S. 917, and judgment below reversed, 343 U. S. 918. See
Chapter XIV, below, for the full transcript of the oral argument in the
Supreme Court in this case. See also Section 35 (d), supra, at pp. 106-
107.
149 First Circuit, Rule 24 (8); Second Circuit, Rule 17 (d); Third
Circuit, Rule 25(1); Seventh Circuit, Rule 17(f); D. C. Circuit, Rule
18(c). The Supreme Court, however, permits the filing of a supplemental
brief contain
The best advice for this sort of impulse is: don't! Far better to write out
what you have in mind, read it aloud to as sympathetic an audience as you
can muster—and then relegate it to your file, circular or otherwise.
Post-argument filings are justified in only a rigidly limited class of
instances—and their form depends on the rules and practice of the court in
question. In the Supreme Court, a letter to the Clerk is acceptable—which is
to say, it will not be bounced back for being in letter form. In many Courts
of Appeals, on the other hand, a motion for leave to file must be affixed to
anything at all submitted after oral argument. Checking with the clerk in
advance in this connection may save much embarrassment.
In my view, there are only two instances in which the filing of additional
material after the argument is justified:
(a) First, when the court at the argument has asked counsel for additional
data of any kind. If a memorandum has been requested orally, then that
document should so state. E.g., "Pursuant to the Court's request, etc.," or
"Pursuant to permission granted at the argument of this cause, etc." In
courts where letters to the clerk are in order, be sure to provide sufficient
legible copies for every member of the court, and do not fail to send a copy
to opposing counsel.
(b) Second, in the unusual situation where, in a supplemental
memorandum filed by your opposition in the situation just mentioned, you
find a whopping misstatement. Since there is no other way to reply, a
motion for leave to file—or a letter to the clerk—is then in order. Flyspecks
or minor errors had better be passed over as one of the unavoidable
incidents of litigation; further reply is justified only when the misstatement
is both material and significant.
An example of such a communication in the latter situation is set forth in
the note below, exactly as it was written to the Clerk of the Supreme
Court.151 The Clerk later advised that copies were distributed to the Court;
there was no reply from the other side.
ing "intervening matters that were not available in time to have been
included" in the brief-in-chief. Supreme Court Rule 41 (5).
150
Supreme Court Rules 41(3), 41(5); Fourth Circuit, Rule 12(3);
Tenth Circuit, Rule 19 (11); D. C. Circuit, Rule 18 (i).
But, in the more usual situation—desist. Normally this kind of final final-
word won't be given much attention, and although it may make you feel
better, it really won't advance your case.
151 8 March 1957
John T. Fey, Esq.,
Clerk,

Supreme Court of the United States,

Washington 13, D. C.

Re: Reid v. Covert, No. 701, O.T. 1955.

Kinsella v. Krueger, No. 713, O.T. 1955.

Dear Mr. Fey:

A particularly glaring misstatement of fact in the Government's
"Supplemental Memorandum * * * Following Reargument" impels this
communication.
At page 14 of that document it is stated that I misunderstood the
Government's position as to the power of Congress to subject dependents
of military personnel to trial by court-martial, and I am correctly quoted
from page 70 of the Ward 8c Paul transcript of the oral argument as
having said:
 "Then I must confess I was amazed when the Solicitor General said
that it is only a question of legislative judgment that any time Congress
wants to subject the good ladies at Fort Myer to trial by courts martial,
they can do so."
The Government fails to quote, from the same transcript, what the
Solicitor General actually said which evoked the foregoing reply. Here
are those passages (Ward & Paul transcript, page 14):
"The Chief Justice: How about the wives and other dependents of
military personnel who live on a cantonment in this country; are they
camp followers too in the sense that that book describes it?
"Mr. Rankin: I would think they would be under the sense of this
book. I think that that is provided for otherwise by the question of
whether they are in the field and the fact that Congress has expressly
provided that if they are not in the field, they are subject to the
jurisdiction of the courts.
"The Chief Justice: Then does Congress say that dependents of
military personnel in this country who live on a cantonment are in the
military service and would be subject to court martial as these women
are? "Mr. Rankin: I think so far as power is concerned. "The Chief
Justice: Yes, I am talking about power. "Mr. Rankin: The power is there."
I would not for a moment question the Solicitor General's right to correct
what on more mature reflection appears to have been an improvident oral
statement. It is doubtless his duty to recede from untenable positions. But
I submit that this duty can be fully discharged without the present
postargument attempt to attribute error to opposing counsel by less than
full disclosure in a printed brief of what the transcript of argument shows
to have been actually said in open court.
Respectfully,
/s/ Frederick Bernays Wiener
Counsel for the Appellee in No. 701 and the Respondent in No. 713
cc: Hon. J. Lee Rankin

Section 87. Briefs amicus curiae; in general.

 —As long ago as the early years of the Fourteenth Century, counsel were
telling the court that "The judgment to be by you now given will hereafter
be an authority in every quare non admisit in England;"152 and, a little later,
the Chief Justice of the Common Bench observed, "By a decision on this
avowry we shall make a law throughout all the land." 153 Even in those
distant days, long before any doctrine of precedent had really been
formulated,154 bench and bar thus recognized that a judicial decision affects
many more individuals than just the parties to the litigation. And so, over
the years, it became customary for those whose rights depended on the
outcome of cases pending in courts of last resort to file briefs amicus
curiae, in order to protect their own interests:
More recently, with the rise of organizations dedicated to the furtherance
of particular principles, such briefs were no longer presented only by parties
with similar or identical interests or cases, but became vehicles for
propaganda efforts. Far from affording assistance to the judges, on occasion
they did not even mention the decisive issue on which the case turned, and
on which the court ultimately divided.155 Instead, their emphasis was on the
size and importance of the group represented,156 or on contemporaneous
press comment adverse to the ruling of the court.157 Certainly there were
multiplying signs after 1947 that the brief amicus curiae had become
essentially a means designed to exercise extrajudicial pressure on judicial
decisions, more decorous than but essentially similar to the picketing of
courthouses that Congress thereafter prohibited.158
152 Y. B. 32 & 33 Edw. I (Rolls Series) 32.
153 Y. B. 3 & 4 Edw. II (Selden Soc, vol. 22) 161.
154 for the best modern discussions of the growth of the doctrine of
precedent, see Allen, Law in the Making (6th ed. 1958) 183-230, and
Plucknett, Concise History of the Common Law (5th ed. 1956) 342-350.
155See Girouard v. United States, 328 U. S. 61, where the decisive
issue —whether the reenactment of a statute construed in earlier
decisions amounted to Congressional approval of those decisions—was
not mentioned in the brief amicus curiae filed by the American Civil
Liberties Union.
 156E.g., brief amicus curiae of the American Newspaper Publishers
Ass'n in Craig v. Harney, 331 U. S. 367; memorandum amicus curiae of
the C.I.O. in support of petition for rehearing in Harris v. United States,
331 U. S. 145. See, in this connection, the mordant comments of the late
Mr. Justice Jackson, dissenting in Craig v. Harney, 331 U. S. at 397.
i5r "xhe great weight of opinion is that the decision virtually repeals the
Fourth Amendment. See Twohey, Analysis of Newspaper Opinion, week
ending May 10, 1947, p. 4." Memorandum amicus curiae of the C.I.O.,
cited in the preceding note, at 7.
Indeed, the presentation of briefs amicus curiae became such a problem
in the Supreme Court that in 1949 a more restrictive rule as to such briefs
was adopted.159 For a time the then Solicitor General almost automatically
refused his consent to motions for leave to file; this threw a greater burden
on the Court; 160 now, the policy is more liberal; and the present
Government policy and the present Supreme Court rule combine to permit
parties with interests more immediate than those of mere propaganda to file
briefs amicus curiae without undue difficulty.161
It must be borne in mind that on this question there exists a sharp
difference of judicial opinion. Mr. Justice Black, dissenting from the
adoption of the Supreme Court's new rules in 1954, said, "Most of the cases
before this Court involve matters that affect far more people than the
immediate record parties. I think the public interest and judicial
administration would be better served by relaxing rather than tightening the
rule against amicus curiae briefs." 162
But the answer to this observation is that it is obviously impracticable to
let every affected private person have his say in every Supreme Court
lawsuit. Suppose that there is pending a tax case involving the scope of the
deduction for "ordinary and necessary" business expenses;163 could every
taxpayer whom that decision might affect be permitted to file a brief? (If the
case turns on the scope of a criminal statute, it is of course less likely that
those contemplating like misconduct in the future will seek to present their
views.)
Similarly, it is not open to any lawyer simply to file a brief or to
participate in the argument on the footing that he knows more about the
particular field of law than does counsel for a party, and that he is
accordingly better equipped to point out the fallacies in the other side's
position. When an outsider did substantially that on one notable occasion, a
majority of the Supreme Court joined in saying, "We discountenance this
practice." 164
158 See 18 U.S.C. § 1507; 40 U.S.C. § § 13f-13p.
159 Old Supreme Court Rule 27 (9), 338 U. S. 959.
160
See the memoranda filed by Frankfurter, J., in United States v.
Lance, Inc., 342 U. S. 915, and in On Lee v. United States, 343 U. S.
924.
161
See Supreme Court Rule 42. See also First Circuit, Rule 24 (10);
Ninth Circuit, Rule 18 (9); D. C. Circuit, Rule 18 (j).
162346 U. S. 946. Actually, the rule as to briefs amicus curiae adopted
in 1954 did not effect any substantial changes. See 68 Harv. L. Rev. at
81.
163See e.g., Peurifoy v. Commissioner, 358 U. S. 59, and Cammarano
v. United States, 358 U. S. 498.
And, however laudable the motives of many organizations dedicated to
fostering their own particular versions of the American-cum-Utopian way
of life, it is unfortunately the fact that many briefs filed by such bodies lack
the professional qualities that tend to make them most helpful to the
tribunal concerned.165

Section 88. Briefs amicus curiae; position of private counsel.

—With briefs amicus curiae, as with reply briefs, the basic question is
whether to file at all. There is no need here to discuss the problem of those
who do not need consent of the parties to file166— the Solicitor General,
who is frequently constrained to conclude that the United States lacks the
burning interest in given private litigation that enthusiastic General
Counsels of particular Federal agencies profess to find there; and State
Attorneys General, whose duty it is to defend, as amici curiae, legislation in
their own States that is similar to or identical with legislation from other
States actually under challenge.167 It is similarly unnecessary to discuss the
position of the crusading organizations; these have their own standards,
their own pet causes, and their own urges, none of which can or will be
deflected in any degree by outside arguments. The problem posed by this
section is that confronting the private practitioner.
No doubt the soundest view is that the filing of a brief amicus curiae on
behalf of a client should be seriously considered only when such filing is
plainly necessary to protect that client's interest, but not when the only
justification for such a course would be the desire to add a "me too," or
even a conviction that "anything-youcan-say-I-can-say-better."
A good yardstick for differentiating between the two situations is the
Supreme Court rule that sets forth the showing required to be made in a
motion for leave to file a brief amicus curiae, namely, "facts or questions of
law that have not been, or reasons for believing that they will not
adequately be, presented by the parties." 108
164 Rosenberg v. United States, 346 U. S. 273, 291-292.
165See note 155, supra. The example cited in Section 76, above, at p.
241, also appeared in a crusading organization's brief amicus curiae.
166Supreme Court Rule 42 (4); First Circuit, Rule 24 (10); Ninth
Circuit, Rule 18 (9) (c); D. C. Circuit, Rule 18 (j) (1).
167
For some recent examples, see New York v. O'Neill, 359 U. S. 1;
Northwestern Cement Co. v. Minnesota, 358 U. S. 450.
If, for example, a taxpayer is litigating with the Government to establish
his right to a deduction that he must share with other parties, in a situation
where the Internal Revenue Service is essentially a stakeholder, then
another taxpayer who represents a genuinely adverse interest may fairly
seek to enter the lists as a friend of the court. An example is the percentage
depletion deduction, which in the case of leases must be equitably
apportioned.169 Similarly, in the case which involved the ascertainment of
the proper base for the depletion allowance, in that instance fire clay for
making burnt clay products, the National Coal Association sought and was
granted permission to file a brief amicus which pointed out that the
statutory provisions governing coal depletion varied materially from all the
others.170 On the other hand, if the taxpayer is claiming a deduction which,
if available at all, would inure to the benefit of multitudes of other
taxpayers similarly situated, a brief amicus curiae should be filed on behalf
of one not a party to the litigation only when it can reasonably be
demonstrated that the governing considerations have not been, or will not
be, adequately presented by the litigants. If no such demonstration can
fairly be made, counsel is better advised simply to pass on to the lawyers
actually in the case his pet citations bearing on the issues involved.
Suppose, however, that you are the lawyer in the case, and you are
approached by outside counsel with a request for your consent to the filing
of an amicus brief. Should you consent, refuse consent, or, after refusal, file
an objection (as the rules of some courts permit you to do) ?171
This is the kind of predicament that recalls the late Gluyas Williams'
cartoon series of "Difficult Decisions"; the competing considerations are, on
the one hand, one's natural impulse never to refuse to a fellow lawyer a
professional courtesy that one may later want in return, and, on the other,
the overriding demands of one's own client's interests (and, usually, the
even stronger impulse of not wanting outsiders to mess up one's own case).
168 Supreme Court Rule 42 (3); cf. D. C. Circuit, Rule 18 (j) (2).
169See Commissioner v. Southwest Expl. Co., 350 U. S. 308; Parsons
v. Smith, 359 U. S. 215; United States v. Stallard, 273 F. 2d 847 (C.A. 4).
170 United States v. Cannelton Sewer Pipe Co., 364 U. S. 76, motion
for leave to file brief amicus curiae granted, 363 U. S. 959.
171Supreme Court Rule 42(3); Ninth Circuit, Rule 18(9) (b); D. C.
Circuit, Rule 18 (j) (2) .
Probably the most practical guideline is the old saw, "I can defend myself
from my enemies, but Heaven protect me from my friends"; confusion in
the enemy ranks is fine, confusion in one's own may be dangerous. So, don't
hesitate to consent to the filing of a brief amicus against your position, but
be very careful indeed about whom you will permit to fight at your side.
Unless you can be perfectly sure that your prospective ally's position will be
consistent with or complementary to your own, it is safer to refuse consent.
Actual objection to his motion for leave to file will rarely be necessary; an
intimation that you will probably object generally suffices to head off the
unwelcome reinforcement.
The foregoing represents my own considered judgment. There may,
however, be exceptions, depending on (a) the nature of the individual or
organization seeking to come in with you on your side; (b) the weight the
particular court is thought to give the representations of the organization in
question; and (c) the extent to which counsel needs, or thinks he needs,
reinforcements.
For instance, counsel representing a labor union may feel that he would
be helped by a supporting brief from the parent body, the AFL-CIO. Other
examples will come readily to mind. But, so far as I am personally
concerned, I never consent. "Never? Well, hardly ever."

Section 89. Use of models.

—I have earlier suggested (Section 20, above) the utility of studying
briefs written by leaders of the bar, so that you may learn how the masters
of the business turn it off.
To the extent that the several forms you examine differ, to the extent that
several lawyers of equal eminence and learning employ varying styles, use
your own judgment, make up your own mind, and, in the words of a now
hackneyed but essentially tragic phrase of the Twenties, combine the best
features of each.
Be careful, however, not to follow any forms blindly; therein lies the
pitfall of the form book, of what one of my former associates used to call
the Sears Roebuck catalogue. Use the form of other folks' briefs
intelligently and eclectically. And be sure, very sure, that a supervening
change in court rules has not rendered obsolete the form you are planning to
follow. See Section 22, above.

Section 90. Significance and importance of accuracy.

—I will end the discussion of briefs by recurring to that tiresome
obsession of mine, the importance of accuracy.
 Nothing quite so destroys a court's confidence in a lawyer or in his brief
as when it finds that he has made inaccurate statements, either through
carelessness or through design. That assertion is true of the entire
document.172 Contrariwise, a court will have complete faith in the briefs of
any lawyer who has established his reputation for accuracy. Such a
reputation needs to be guarded as carefully as personal honor itself—which
in a very real sense it involves.
A brief should be written to persuade; it should pull no punches; but it
must be honest, and it must be accurate.
172 See the comments of the First Circuit in Griffin Wellpoint Corp. v.
Munro-Langstroth, Inc., 269 F. 2d 64, 67, concerning "some of the tricks
of advocacy indulged in by counsel for appellant to lend apparent
substance to its position," in consequence of which double costs were
awarded the appellee.
THIRD PART
ARGUING THE APPEAL
 CHAPTER VI

ESSENTIALS OF AN EFFECTIVE ORAL

ARGUMENT

Section 91. Should you argue at all?

—At this point it will be assumed that your brief has been filed, that it is
in satisfactory shape, and that it contains a minimum of misprints and
typographical errors. You must then decide whether to argue the case or to
submit it on briefs.
Appellate judges, virtually without exception, say that a case should
never be submitted without oral argument, and a good many are on record
in print to that effect.1 According to the late Mr. Justice Jackson, "I think
the Justices would answer unanimously that now, as traditionally, they rely
heavily on oral presentations." 2 The present Mr. Justice Harlan told an
audience, "I should like to leave with you * * * the thought that your oral
argument on an appeal is perhaps the most effective weapon you have got if
you will give it the time and attention it deserves." 3 A former member of
the United States Court of Appeals for the District of Columbia Circuit said,
"The longer I sit on the bench the more convinced I become that a lawyer
should never submit a case without oral argument." 4 Expressions such as
these—and many, many more could be cited—reflect the fact that the task
of judgment is infinitely harder when counsel is not present to be
questioned regarding his exact position, or to be asked how far the principle
he contends for should extend. Just as the trial lawyer objects to an offer in
evidence of an affidavit by saying, "I can't cross-examine that document,"
so an appellate judge knows that he cannot cross-examine a brief; he knows
that he cannot obtain from a printed document the clarification of issues and
positions that the questioning of counsel will afford. More than that, as Mr.
Justice Frankfurter once wrote after he had been on the Court upwards of
fifteen years, "Oral argument frequently has a force beyond what the
written word conveys." 5
1 E.g., Hughes, Supreme Court of the United States (1928) 62-63.
 2Jackson, Advocacy Before the Supreme Court: Suggestions for
Effective Case Presentations, 37 A.B.A J. 801 (1951).
3Harlan, What Part Does the Oral Argument Play in the Conduct of
an Appeal?, 41 Corn. L. Q. 6, 11.
4 Miller, Oral Argument, 9 J. of the Bar Ass'n of the D. C. 196.
Similarly, the late Chief Justice Vanderbilt of New Jersey, who while still
at the bar played such a prominent part in the drafting and adoption of
the Federal Rules of Civil and Criminal Procedure, wrote, "Cases that are
not argued are not well decided." Vanderbilt, A Unified Court System, 9
F. R. D. 629, 639.
Accordingly, on several occasions in the past, the Supreme Court called
for oral argument in cases that counsel had submitted.6 In an early stage of
one of the Segregation Cases, where neither the school authorities nor the
State whose statute was under attack filed a brief or indicated a readiness to
argue, the Court said, Per Curiam, "we request that the State present its
views at oral argument. If the State does not desire to appear, we request the
Attorney General to advise whether the State's default shall be construed as
a concession of invalidity." 7 Thereafter the case was briefed and argued on
behalf of that State.8
In 1954, the Court adopted Rule 45(1), as follows:
The court looks with disfavor on the submission of cases on briefs,
without oral argument, and therefore may, notwithstanding such
submission, require oral argument by the parties.
In the first instance of a submission after the effective date of that Rule,
the Court denied leave to submit the case without oral argument, and,
because counsel for the respondent lived at a distance, invited a
distinguished law teacher—Dean Griswold of Harvard—to present oral
argument in support of the judgment below.9 Some other federal appellate
courts similarly require permission as a prerequisite to submission without
argument.10
5Rosenberg v. Denno, 346 U. S. 371, 372. Mr. Justice Jackson wrote
(Advocacy Before the Supreme Court: Suggestions for Effective Case
Presentations, 37 A.B.A.J. 801), "The Bar must make its preparations for
 oral argument on the principle that it always is of the highest, and often
of controlling, importance."
6See, e.g., the following items in the Journal of the Supreme Court:
Oct. T. 1935, p. 126, No. 2; Oct. T. 1936, p. 45, No. 20; Oct. T. 1941, p.
222, No. 782. See also King v. Mullins, 171 U. S. 404; Patton v. Brady,
184 U. S. 608.
For the circumstances under which the first minimum wage case,
Stettler v. O'Hara, 243 U. S. 629, was set down for argument after it had
originally been submitted, see Felix Frankfurter Reminisces, 97-101.
7 Brown v. Board of Education, 344 U. S. 141, 142.
8 Brown v. Board of Education, 347 U. S. 483, 484.
Consequently, quite apart from any question whether refusal on the part
of a court or administrative agency to permit oral argument as to particular
matters involves a denial of Due Process,11 counsel should be prepared to
argue—because, very plainly, he will hurt his client's case by not doing so.
It may be, of course, that the appellant's case is so completely devoid of
merit that you, representing the appellee, will never be called upon, or that
you will be told by the presiding judge, as you move toward the lectern,
"The Court does not desire to hear further argument." In that event, it is
better to accept victory gracefully than to attempt to inflict your eloquence
on the tribunal. And there may be instances where it will be desirable, on
behalf of the appellee, to say little or nothing.
For example, in one case petitioner's lawyer took such a battering from
the court that it was obvious to everyone that the judgment below would be
affirmed. Counsel for the respondent arose, bowed, and said, "If the Court
please, I must apologize for an error in our brief. At page 39, second line
from the bottom, the citation should be to 143 Federal Second and not to
143 Federal." He paused until the members of the court noted the
correction, paused again when they looked up, toyed with his watch chain,
and proceeded: "Unless there are any questions, I will submit the
respondent's case on the brief"—and sat down. I have it on excellent
authority that it was one of the most effective arguments ever heard by that
court.
 But of course, that is the exceptional instance—and a risky technique in
the usual case. Normally, it is well to assume that the court desires to hear
argument unless it affirmatively indicates the contrary, and normally, also,
cavalier belittling of an opposing argument is apt to backfire. Certainly,
where the appeal is a discretionary one, as on certiorari or—in actual fact—
on appeal in the Supreme Court, it is unwise for the respondent or appellee
to suggest that, after all, there is nothing in the case to argue about. By
granting certiorari or by noting probable jurisdiction, at least four Justices
have already indicated the contrary.12
9Granville-Clark v. Granville-Clark, 349 U. S. 1, 4. The submission
appears at J. Sup. Ct., Oct. T. 1954, p. 78, 23 U. S. Law Week 3134, and
the order denying leave to submit at 348 U. S. 885.
10
Fifth Circuit, Rule 20 (4); Seventh Circuit, Rule 21 (d); U. S. Court
of Military Appeals, Rule 47 (b).
11See Federal Communications Comm. v. Station WJR, 337 U. S. 265,
reversing 174 F. 2d 226 (D. C. Cir.) ; cf. WIBC, Inc. v. Federal
Communications Comm., 259 F. 2d 941 (D. C. Cir.), certiorari denied sub
nom. Crosley Broadcasting Corp. v. WIBC, Inc., 358 U. S. 920.
At any rate, so far as I personally am concerned, I prefer to get up and
talk. That's at least half the fun for me—and, as the materials collected
above show, it is certainly safer for the case.

Section 92. List of the essentials of effective oral argument.

— The really essential features are:
(a) Appreciation of the purpose of advocacy.
(b) Not reading the argument.
(c) Application of the fundamentals of good public speaking.
(d) An effective opening.
(e) Clear statement of facts.
(f) Complete knowledge of the record.
(g) Thorough preparation.
 (h) Attitude of respectful intellectual equality.
(i) Flexibility.
These essentials are discussed in order below. The finer points, i.e., those
that make the difference between a first-rate argument and one that is
merely run-of-the-mill, are considered in Chapter VIII.

Section 93. Appreciation of the purpose of advocacy.

—What is it that a lawyer seeks to do when he argues a case on appeal?
Is he there to make a flamboyant speech? Is he there to put on a show for a
client? Or is he there to win the case?
The last named, obviously, if only for the mundane reason that higher
fees are paid—and, usually, additional retainers become available—to the
successful advocate. (Not that the public practice of the law is essentially
different; Government or State or County lawyers also all want to win;
losing a case is fully as painful to public counsel's psyche as it is to private
counsel's pocket.)
12The divergent views set forth in Ohio ex rel. Eaton v. Price, 360 U.
S. 246, make explicit what formerly was only implicit, viz., that, just as
four votes suffice to grant certiorari, four likewise are sufficient to note
probable jurisdiction.
Perhaps one of the most penetrating discussions of what a lawyer should
strive to do when arguing an appeal appeared in an obituary address written
by Mr. Justice Frankfurter some years back on the occasion of the untimely
death of one of his former law clerks.
From the first he showed that the stuff of the advocate was in him, and by
the time he left the Government, when the Supreme Court adjourned in
June, 1952, he had fashioned himself into an accomplished practitioner of
the art of persuasion. When he appeared at the lectern, erect and handsome,
with an agreeable voice, serene rather than self-confident, tactful but firm,
and always master of his case, the Court increasingly was assured of an
argument that gave pleasure as well as enlightenment. He respected the
traditions of the Supreme Court as a tribunal not designed as a dozing
audience for the reading of soliloquies, but as a questioning body, utilizing
oral arguments as a means for exposing the difficulties of the case with a
view to meeting them. He held up his share of the probing process, and
members of the Court were kept alert to observe the responsibilities of the
questioner. It is fair to say that in a few short years Stanley Silverberg had
attained a stature as an advocate matched by few lawyers coming before the
Court, including the most eminent and experienced members of the Bar.13
Putting to one side for the moment the quality of the tribute, the
significant point in the present connection is the Justice's definition of an
advocate: "a practitioner of the art of persuasion." I emphasize that
definition because of its importance, and because one would never dream
from hearing some appellate arguments that they were being made to
persuade a court to agree with the speaker.
The frequency with which counsel will fight a court, either generally or
on specific unessential propositions, serves only to underscore the extent to
which some lawyers overlook the obvious. One never persuades by
antagonizing. You may take a dim view of a particular judge, or of a
particular decision, or of a whole series of decisions, or indeed of the
prevailing trend of the particular court—-but when you appear before that
tribunal on behalf of a client—private, corporate, or public—your job is to
win your client's case, not to tell off the court, or particular members of the
court, or to go all out on any tack not necessary to the case.
13 Frankfurter, Of Law and Men (1956) 321-322.
I place first among the essentials, therefore, the truism that advocacy is
the process of persuasion.14

Section 94. Not reading the argument.

—Never read your argument. Never read your argument. NEVER READ
YOUR ARGUMENT.
Once a lawyer begins to read to the court, whether it is his formal written
brief, or the set piece he has written out to constitute his text for the
argument, he raises up a curtain between himself and the court. Talk to the
court, don't read to them! It is really amazing how many lawyers of ability
and reputation will write out an "oral" argument and then get up and read it
to the court—and equally amazing how long some courts appeared willing
to tolerate the practice.
In its 1954 Rules, the Supreme Court finally put its collective foot down
firmly. Rule 44(1) states,
Oral argument should undertake to emphasize and clarify the written
argument appearing in the briefs theretofore filed. The court looks with
disfavor on any argument that is read from a prepared text.
The italics will not be found in the original; they have been added
because of reflections evoked by the emphasized sentence. Had that
provision been in effect in the twenty or so years preceding its adoption, it
would have hampered not only a large collection of Assistant Attorneys
General, whose qualifications for heading a division in the Department of
Justice assuredly did not insure their forensic competence, but also a whole
host of private practitioners who lacked the facility to argue save by reading
what had first been written down, like as not by another hand. And what a
commentary Rule 44(1) is on the number of times the Supreme Court must
have been subjected to such performances in the past! Other federal
appellate courts appear not to have been similarly troubled, perhaps because
arguments there are not regarded as sufficiently glamorous to be sought
after by those whose rank in the legal hierarchy is perceptibly higher than
their standing in the scale of advocacy; in any event, the only prohibitions
in the Federal courts of appeals are against reading long excerpts from
decisions, records, and briefs.15
14 Some years back, while lecturing on oral advocacy to the first year
students at an Eastern law school, I mentioned, by way of illustrating an
answer during the question period, the case of Erie R. Co. v. Tompkins,
304 U. S. 64. I was aware that the doctrine of that case was regarded
with, at the least, considerable reserve on the part of some faculty
members at this institution, but I must say I was completely
flabbergasted when my citation was greeted with prolonged hisses from
the student audience.
Passing the point that most critics of Erie R. Co. v. Tompkins probably
lack any appreciation of the problems raised by Swift v. Tyson, 16 Pet. 1,
which it overruled, the obvious comment in the present connection is
that, once law students graduate and get to court—always assuming that
 they can pass their bar examinations—hissing particular decisions will,
in any court, prove to be a most unhelpful technique.
There are not many phases of oral advocacy on which one is warranted in
being dogmatic, but this is one of them: Don't read. It is wrong, all wrong.
Occasional addresses, i.e., Remarks on the Dedication of a Memorial to the
Former Members of the Society— something prepared for a particular
occasion, where the form of every sentence counts and where there are no
interruptions— those can and should be read. (Make sure, however, that
even in that instance you read from the paper, and not at it.)
But in court, when you are engaging in argument, subject to instant,
insistent (and frequently fairly constant) interruption, reading just doesn't go
over. It raises a veil between the speaker and his auditors. No advocate
worthy of the name will ever read his argument to the court—and if the
unequivocal character of these statements leaves you unconvinced, just go
to court some day and listen to the readers (in courts where reading is still
permitted) .
Not only that, but an oral argument loses much of its spontaneity if it is
written out in advance. It is more natural—and hence more effective—if it
is delivered from notes. Below, in the chapter on preparation, are discussed
the problems of how extensive those notes should be, and whether and to
what extent they may safely be discarded altogether. The point made here is
that the advocate should use his notes as a guide, not as a text.

Section 95. Application of the fundamentals of good public

speaking.
—An effective appellate advocate must have an appreciation of and
ability to apply the fundamentals of good public speaking—and that does
not mean oratory, because oratory is not necessary. An appellate court is not
a jury. It may react like a jury, as witness the timelessness of the observation
that hard cases make bad law, but it dislikes to be harangued as though it
were in the box instead of on the bench. The play on an appellate court's
emotions must be subtle and restrained if it is to be effective.
"First Circuit, Rule 28(3); Third Circuit, Rule 31(3); Fifth Circuit,
Rule 25 (3); Sixth Circuit, Rule 20 (3); Seventh Circuit, Rule 21 (c).
 Nonetheless, an argument differs from a dinner-table conversation; and
although of course the present chapter does not and cannot purport to be a
text on public speaking (any more than Chapter III was a manual on how to
write good English), there are certain fundamentals that can be briefly
stated.
(a) You must be heard. Once you are on your feet, talk is the only
medium by which you can communicate your thought to the court, and,
unless you can make yourself heard by all of the judges, you are wasting
your time and the court's time and are endangering your client's cause. If
you are arguing to a bench of five, seven, or nine judges, the end men must
be able to hear what you are saying.
It is all very noble to assert (as I have heard some earnest and upright
young men say) that honesty precludes resort to any artificialities. The fact
of the matter is that a certain degree of artificiality is necessary in order to
convey a realistic likeness. Consider, for instance, actors in a play: in order
to present to the audience the picture of persons sitting around a table
talking quietly, the actors must themselves talk more loudly so that the
people in the back of the theater may hear them; and in order that they may
be seen, the actors, however manly, must put on grease paint and theatrical
lipstick. Artificial? Yes, but without that kind of artifice the audience cannot
obtain an impression of realism.
It is the same with a lawyer in an appellate courtroom—most of which
have wretched acoustics. He must speak loudly enough so that he can be
heard and understood. (Sometimes a public address system is provided, as
in the Supreme Court, but that is not usual.)
(b) You must use proper emphasis. Here again, emphasis is a species of
artifice; but the spoken word without emphasis would be as ineffective—
and often as unintelligible—as the written word without punctuation or
capitalization. A lawyer worthy of the name cannot afford to use the same
tone for "This case comes here on appeal from a decree of the District Court
for the Eastern District" as for "This is the gross and shocking fraud that
was perpetrated by these respondents."
The matter of proper emphasis can be broken down into not more than
four basic admonitions:
 (i) Avoid a monotone. Perhaps the best way to attempt to reproduce a
monotone in print is to set out a paragraph without punctuation: "At this
point the shipper called on the railroad to deliver livestock directly to its
siding but the railroad refused to do so contending that by reason of its
contract with the stockyards it was bound not to deliver such competitive
traffic over the track in question without the payment of yardage charges
which yardage charges it was no longer willing to absorb and thereupon the
shipper instituted its complaint against the railroad before the Commission."
That sort of thing is just as difficult to follow by ear as by eye.
(ii) Avoid the ministerial cadence. Here the voice goes up and down but
without emphasis on particular words, like this:

(iii) Avoid mumbling. "This—ah—case, turns on the—ah —validity of

the—ah—Gadget Restriction Act of—ah—1958. We —that is, the
petitioners—ah—contend—ah-—that the measure— ah—clearly
transcends—ah—the powers vested in the—ah—Congress." And so on, and
on, and on.
 (iv) Use the pause. The only way that an oral statement can be
punctuated is by a pause—a short one for a comma (which, after all, is
simply a signal for a breath), a longer one at the end of a sentence, and a
still longer one when you reach the end of a paragraph. If you want more
emphasis, as for instance to mark your taking up an entirely new point,
underscore the pause and make it longer by taking a sip of water. Since you
cannot wave a red handkerchief to indicate the end of paragraphs or a blue
one to signal the completion of points, you must pause in some fashion or
other.
The pause is also helpful as a device to regain the court's attention.
Sometimes the learned judges just aren't interested. Sometimes that is the
fault of the case, more often it is the fault of the lawyer, and sometimes they
just aren't paying attention anyway. They are whispering, and passing notes,
and reading at the record. Your main proposition is coming up. How make
certain that it will have their full attention? Very simple; just use the public
speaker's oldest trick: Pause. The sudden silence makes everyone look up,
every member of the court eyes the speaker expectantly—and then you give
them your big point. It's an ancient ruse, but still one of the most effective.

Section 96. An effective opening.

—High on the list of essentials is the admonition to lodge effectively in
the court's mind, in the opening minutes, what the case involves, so that
interest and understanding will be seized and held. This generally requires
the use of a good opening sentence or paragraph. The important point to
remember is that the first few minutes are critical, that counsel must catch
and hold the court's interest and attention in that time. If he is for the
appellant, he must give a thumbnail epitome of "what this case is all about."
If he is for the appellee, he must in his opening sentence seize upon the
central feature of the case, and, by driving it home, dispel the impression
left by his adversary.
The opening should, after the technique of the well-written newspaper
account, tell the whole story in the first paragraph, after which it is time to
go back and fill in the details. And, like the competent newspaper reporter,
the advocate must never keep his audience in suspense; on the contrary, he
must give his secret completely away right at the outset.
 The process of formulating an effective opening is probably easier when
the lawyer is topside, i.e., when he appears for the appellant or petitioner,
because then he can work out and polish his opening well in advance. More
flexibility is necessary when the advocate is bottomside; then, very
frequently, he must improvise in order to be able to tie on to something said
by the preceding speaker. In either event, counsel must avoid trivia—and,
when he is the second man up, he must, however great the temptation
and/or provocation, avoid personalities.
On the whole, I think a good opening is probably more important when
the advocate is bottomside, for the appellee or respondent, because then the
court is extremely anxious to get, in a nutshell, the gist of the reply to the
argument it has been hearing for thirty, forty-five, or sixty minutes. The
appellee's case sags perceptibly if counsel, facing this expectant bench,
commences with the perfectly immaterial correction that "Petitioner X was
not the President of the company, he was only the Vice-President," or when
counsel for the appellee, in a case that turns entirely on law, begins by
saying, "I would like to review very briefly the facts out of which this case
arises."
The court is perhaps not equally alert when appellant rises because at that
point there is generally a certain amount of intellectual clearing of the
throat, so to speak.
(a) Here are some examples of oral openings, drawn from my own
practice and observation, that have held a court's attention:
(i) [For petitioner.]
Respondents were convicted by a jury of conspiring to defraud the
United States of the disinterested services of one of its officers. Their
judgments of conviction were reversed by the Second Circuit on four
separate grounds, and the case is now here on certiorari.
Two of the questions, involving alleged errors on the part of the trial
court, concern only the Bayers. Two concern only Radovich— whether a
confession of his was admissible, and whether his plea of double jeopardy
was a valid one. I shall deal with each of those questions separately in the
course of the argument.
The basic facts can be briefly stated. Etc., etc., etc.16
 Analytically, this opening does two things. First, "convicted by a jury" is
pure semantics, resorted to in order to sway sympathy away from the
respondents by appealing to that palladium of liberty, the twelve good men
and true in the box. Second, it states the issues in a nutshell, so that the
court has the bare outline of the case in mind, and will not ask impatient,
interrupting questions while the basic facts are being developed.
(ii) [For petitioner.]
18 United States v. Bayer, 331 U. S. 532.
This case, which is here on certiorari to the Ninth Circuit, involves the
protection to be accorded the Government-soldier relationship.17
That states the question concisely—and phrases it in such a way as to
present the petitioner's contention, i.e., that there is something to be
protected, as sympathetically as possible. (If the flag is to be waved
effectively in an appellate court, the motion should be languid—as though
the flagstaff were a fan.)
(iii) [For respondent.]
Two days after this Court's decision in the Schwimmer case, a bill was
introduced in Congress to change the rule of naturalization there
announced. Hearings were held on the bill, it was discussed on the floor—
but it never got out of committee.
And on the first day that Congress was in session following this Court's
decision in the Macintosh case, a similar bill was introduced in Congress to
reverse the result in that case. Hearings were held on that bill, that bill was
also discussed on the floor—and that bill never emerged from committee
either. Indeed for eleven successive years, through six successive
Congresses, the same bill was introduced and reintroduced—and Congress
never saw fit to pass it.18
That opening focussed attention on the strongest point in the
Government's case, i.e., not that the Schwimmer and Macintosh decisions
were right, but that they had subsequently been approved by Congress. That
argument, as has been noted (Sections 50, 57, and 70), did not prevail, but
the substance of the opening found its way into a strong dissent written by
Chief Justice Stone on the last day of his life.19
 17 United States v. Standard Oil Co., 332 U. S. 301.
18 Girouard v. United States, 328 U. S. 61.
19 328 U. S. at 73-74: "The construction of the naturalization statutes,
adopted by this Court in the three cases mentioned, immediately became
the target of an active, publicized legislative attack in Congress which
persisted for a period of eleven years, until the adoption of the
Nationality Act in 1940. Two days after the Schwimmer Case was
decided, a bill was introduced in the House, H. R. 3547, 71st Cong., 1st
Sess., to give the Naturalization Act a construction contrary to that which
had been given to it by this Court and which, if adopted, would have
made the applicants rejected by this Court in the Schwimmer, Macintosh
and Bland Cases eligible for citizenship. This effort to establish by
Congressional action that the construction which this Court had placed
on the Naturalization Act was not one which Congress had adopted or
intended, was renewed without success after the decision in the
Macintosh and Bland Cases, and was continued for a period of about ten
years. All of these measures were of substantially the same pattern as H.
R. 297, 72d Cong. 1st Sess., introduced December 8, 1931, at the first
session of Congress, after the decision in the Macintosh Case. It provided
that no person otherwise qualified 'shall be debarred from citizenship by
reason of his or her religious views or philosophical opinions with
respect to the lawfulness of war as a means of settling international
disputes, but every alien admitted to citizenship shall be subject to the
same obligations as the nativeborn citizen.' H. R. 3547, 71st Cong. 1st
Sess., introduced immediately after the decision in the Schwimmer Case,
had contained a like provision, but with the omission of the last clause
beginning 'but every alien.' Hearings were had before the House
Committee on Immigration and Naturalization on both bills at which
their proponents had stated clearly their purpose to set aside the
interpretation placed on the oath of allegiance by the Schwimmer and
Macintosh Cases. There was opposition on each occasion. Bills identical
with H. R. 297 were introduced in three later Congresses. None of these
bills were reported out of Committee. The other proposals, all of which
failed of passage * * * *, had the same purpose and differed only in
phraseology."
 (iv) [For respondent.]
The question in this case is whether a good Nazi can be a good
American.20
This was a denaturalization case, the first to reach the Supreme Court
since the process of denaturalization had run afoul of the decisions in
Schneiderman v. United States 21 and Baumgartner v. United States.22 It
was far stronger for the Government than either of the other two, but I felt
that I needed an opening that would really rock the Court on its heels, and
make them sit up and take notice. This opening did just that, and the
Knauer denaturalization was sustained.
(b) It may also be helpful to set down an example or two of how not to do
it.
(i) [For petitioner.]
This case comes here on certiorari to review a judgment of the Circuit
Court of Appeals for the Eleventh Circuit which reversed an order of the
District Court for the Western Caroline Islands that dismissed a bill of
complaint for lack of federal jurisdiction.
The facts involve an action for damages brought by a native chieftain of
those islands against a medical officer in the Navy. Etc., etc., etc.
The first paragraph is unintelligible orally (and not too easy to understand
in writing) . The second launches directly into the facts. It will be some
time before the court learns what questions are involved. They will either
lose interest—or else interrupt. Sometimes judges are reduced to prying the
facts out of counsel by a species of cross-examination, which means that
counsel isn't doing his job—and isn't helping his case.

20 Knauer v. United States, 328 U. S. 654.

21 320 U. S. 118.
22 322 U. S. 665.
In this particular situation, the whole matter could have been very simply
and clearly presented as follows:
 This case is here on certiorari to the Eleventh Circuit, and involves the
question whether an action for damages arising out of an alleged false
imprisonment, that is said to be in violation of the constitutional guaranty of
due process of law, states a cause of action within federal jurisdiction in the
absence of diversity of citizenship. Otherwise stated, the single issue is
whether an action seeking damages for a tort involves a federal question
whenever the tort is alleged to have been committed in violation of a
constitutional provision.
The facts alleged in the complaint and in the affidavits submitted on the
motion for summary judgment are as follows: Etc., etc., etc.
When the opening is thus presented, the court knows at the outset just
what the question is, and will listen to the facts with some appreciation of
their relevance.
(ii) Here is an example of how counsel for a respondent can make or
break his case at the outset:
In an action by the United States to recover public money paid out
through mistake of law and in reliance on the defendantappellant's
fraudulent representations, appellant's counsel was questioned by the court
just before he sat down, as follows:
Judge X: "Are there any facts reflected in the present record which were
not before the officers of the government in 1923 and 1924 when the
payments were made?"
Appellant's counsel: "No." [He sits down.]
Respondent's counsel: "May it please the Court: This case involves an
interesting question regarding the scope of judicial review of the acts of
administrative officers. Etc., etc., etc."
And the case sags. What respondent's counsel could have said with the
record he had was this:
May it please the Court: I will undertake to answer from the record the
question just put to Mr. Y.
There are many facts reflected in this record that were not before the
departments concerned when the payments were made.
 To begin with, appellant said in 1923 and 1924 that he always believed
he had been an American citizen. But this record shows that he swore under
oath in 1912 and again in 1914 that he was a subject of Germany, and the
record shows that the government officers who passed on his claim were
not aware of his earlier inconsistent statements.
And appellant said in 1923 and 1924 that he was an American who was
detained in Germany by a sick wife. But appellant swore in 1912 that he
was a resident of Germany, and in 1914 that he was a nonresident of
America—and here again the officers passing on his claim did not know of
his earlier representations to the contrary. Etc., etc., etc.
Such a beginning would electrify the court. First, it effectively
undermines appellant's presentation, because it points up the inaccuracy of
that presentation. Second, it shows that appellant was a wicked man. (Fraud
always sways a court, whether the opinion turns on fraud or not.) So long as
it is relevant and not simply dragged in by the ears as an abusive
personality, fraud always makes an impression; and a case that analytically
may be one of dry-as-dust administrative law very often turns, in fact, on
the circumstance that a decision one way would favor the fraudulent party,
whereas a decision the other way would strip him of his illgotten gains.
Respondent's counsel in fact got three votes out of six— enough for his
purposes, since the judgment below was in his favor. But with a proper
opening he would have been arguing in an entirely different atmosphere,
and might well have got all six.

Section 97. Clear statement of facts.

—"The great power at the bar is the power of clear statement!" If that
expression standing alone seems unduly sententious—and it hails from the
Nineteenth Century, being attributed by Southern lawyers to Judah P.
Benjamin, and by Northerners to Rufus Choate—just listen some day to a
really able lawyer outlining a complicated fact situation to a court or jury,
and compare his exposition with the efforts of some garrulous dowager at
the bridge table to explain just what happened to the girls at the last big
country club dance. The lawyer states the essentials first, then develops and
unfolds the details; the dowager runs on endlessly and repetitiously,
expounding whole masses of trivia.
 But it is not a matter of sex, or even of lack of training. Everyone knows
that there are innumerable lawyers who always start with the dreary details,
or who attempt to state a case by carefully embroidering the periphery at the
outset.
No matter how complicated the facts may be, they can always be
presented in their simple essentials. Mr. Justice Brandeis used to say, "There
isn't anything in the world that can't be explained to a jury"—a comment
that really stands as a challenge to every lawyer.
Now, how go about this business of explaining a set of facts? First, ask
yourself: How would you undertake to learn it? What would you want to
know first? What would you want to know next? After that it is simply a
matter of explaining the same things in the same order to the court.
Always keep in mind the basic psychological fact that knowledge is
cumulative, and work from your essentials outward toward the details. Start
with the trunk, take up the branches next, and end with the leaves. Or, in
more concrete terms, always headnote your arguments. It is much easier for
the court to follow you if you give them an oral outline, not only of the
facts, but of the law as well.
Suppose you were retained as counsel for another lawyer: How would
you want him to explain his case to you? If you know that, all you need to
do is to state the matter to the court in the same way.
Below, in Sections 117, 118, and 120, are discussed certain of the finer
points connected with the process, as, for instance, the elimination of
unnecessary details and the necessity for sketching the picture in clear,
broad strokes after it has been outlined. Here is considered only the
immediate essential, namely, will the court —or any listener—know what
the case is about when you have finished stating the facts? If the answer is a
resounding "Yes!" you are ready to pass on to preparing the legal portion of
your argument. If the answer is anything less than that, you had better work
over the facts some more.
Bear in mind also that you cannot cross-reference in an oral argument.
Specifically, suppose you have a case involving two unrelated points. In the
brief, you will set out in your Statement of Facts the facts bearing on point
A and follow them with the facts relating to point B. The brief then
continues with the law on point A, followe 1 by the law on point B, and if
any reader wonders what the facts are as to B at that juncture, all he need do
is turn back a few pages. In other words, your order in writing is FA, FB,
LA, LB, where F = facts and L = law.
But if you argue the case orally in the same way, the court will find such
a presentation confusing in the extreme, and this is particularly so if there
have been questions regarding LA. It is impossible to cross-reference by ear,
even for the most acute of men, and if you are facing even a single judge
whose mental uptake is on the slow side, his questions born of honest
confusion will completely disrupt your presentation. In the case just put, the
only sound method of presentation is to state the facts as to A, mention that
you are deferring the other facts until you reach B, and then argue LA where
it logically belongs, i.e., after the facts out of which it arises. Next you take
up FB, followed by LB, and, once again, everyone is able to follow you.
The same is true in a case involving numerous unrelated points. For
instance, in United States v. Bayer23 four questions were involved, two of
which concerned the Bayers and two Radovich. The first had to do with the
admissibility of a confession made by Radovich, and the second with the
availability of Radovich's plea of double jeopardy. Point Three was whether
the trial judge properly exercised his discretion in refusing to permit the
Bayers to introduce additional evidence four hours after the jury had retired,
and Point Four, whether the trial judge's concededly accurate charge was so
cryptic as to require reversal. Even in the brief, we preceded each point
under the argument with a summary of the facts bearing upon it. At the oral
argument, the Government's case, after being set out in general outline, was
divided up so that the facts bearing on each point immediately preceded the
legal argument on that point. Or, using the symbols already employed:
General statement, FA, LA, FB, LB, FC, LC, FD, LD.

Section 98. Complete knowledge of the record.

—If I were asked to name the advocate's secret weapon—a weapon,
indeed, that still remains a secret to many—I should say that it is complete
knowledge of the record. In this field, pre-eminently, knowledge is power,
and in this field, also, forensic reputations painstakingly established can be
thrown away by a single lazy lapse. No lawyer, no matter how able he may
be, can afford to argue any case in ignorance of the record. It is done, of
course, but it is risky, on a par with passing a car on a curving hill; you may
pull it off, but the chances are heavily weighted against you. Indeed,
whenever any lawyer gets to the point of believing that he can argue cases
on the basis of his own past record rather than on the basis of the actual
record involved in the appeal being heard, hardening of the forensic arteries
has set in, and it is time for him to move over and make room for others.
23 3 31 U. S. 532.
Of course, experience begets a familiarity with the learning process, and
an old hand can pick up—-and pick out—the essentials of a record far more
easily than a tyro. But the lad who really knows his facts is a far more
dangerous opponent even on his first time up than the polished veteran of
hundreds of appellate arguments who has given the record a glib once-over-
lightly. I have seen lawyers of reputation utterly demolished in a courtroom
when they went free-wheeling away from a record they obviously had not
read, and were then caught up short by opposing counsel, who knew it
inside out. The otherwise gentle visages of appellate judges harden
perceptibly when such misstatements are exposed. A lawyer simply has no
business getting up to talk about a case he does not thoroughly know.24
There are a number of aids to learning a record. First of all, read it. Don't
rely on abstracts. Read it yourself. If the case is going to turn on facts, if the
other side is going to attack findings in your favor, if the litigation has any
complexity at all, there is just no escape from that harsh task. The
admonition to read the record may be a counsel of perfection, but no
painless substitute for it has yet been invented.
Second, reread the critical portions. Here again, there is no softly padded,
anesthetized road to learning.
Third, tab the record with gummed-cloth index tabs, so that you can
readily find any material portion without thumbing through it or looking in
the index. The details of this process are discussed below in Section 105.
Tabbing is helpful in itself, just to make you learn the record, to assist you
to envisage its scope and in viewing the case in outline.
24Lest any reader imagine that the admonitions in the text are
addressed to an imaginary situation, let him ponder this passage from an
 opinion: "The present appeal from a final judgment for the defendant is
bottomed upon an erroneous statement of decisive fact in both the brief
and the argument of appellant. This error was not pointed out to the court
by appellee. The portions of the record which would have revealed the
error were not included in the appendix to the brief of either party."
Hartmann v. Time, 180 F. 2d 595 (C.A. 3).
Fourth, the record will stick in your mind more firmly when you write
the brief yourself. When you do that, the case becomes more a part of you
than when you simply soak up a brief someone else has written. But very
frequently, whether in governmental or private practice, the brief (or at least
a finished first draft) will have been written by another hand, so the advice
to write the brief yourself may be another counsel of perfection.
Fifth, a good memory helps. Some people are born with what a friend of
mine used to call a flypaper mind—everything sticks. It is a distinct
advantage to a lawyer to have one, just as it is a distinct advantage to a
woman to be born beautiful. But memory can be trained—just as, unless the
cosmetics manufacturers are wholly wrong, women can be beautified.
At any rate, when you get up to argue your case, you must know your
record better than the court does, because the court relies on counsel to
present the facts. You must do the exploratory work; no court is going to
plow through thousands of printed pages to find the critical bit of testimony
that will win your case. And no court is going to think much of your
argument or be impressed by your knowledge of the case if, when a judge
asks you a simple question—"Where is the order of the Commission in the
record?" "Where is the final contract as agreed upon by the parties?"—you
stand there fumbling, unable to put your finger on the vital documents. The
judges become impatient, you will feel embarrassment, no one listening in
the courtroom is going to think well of you at all—and if opposing counsel
stage-whispers, "Page 28," he wasn't moved by just kindness of heart.
Rather, he has signaled the court that, if they want to learn about this case,
he is the lad they had better ask, not you.

Section 99. Thorough preparation.

—No lawyer would dream of filing with the clerk the first rough draft of
his brief. Why then present to the court the first draft of your oral
argument? 25 Many lawyers, too many of them, do just that—which is why
such a lot of sorry oral arguments are heard in Federal appellate courts
throughout the land.
25 One budding barrister in the same audience already mentioned in
note 14 to this chapter, supra, p. 282, asked, "Just where do you file that
first draft of oral argument?" The only answer I could fairly give him
was, "Not with the court."
There are, of course, some virtuosos, some people who have a flair for
the extemporaneous. If you are one of those fortunate few, the paragraphs
that follow are not for you. But if you are a simple, run-of-the-mill fellow,
like the rest of us, a carefully rehearsed and prepared and revised
presentation will always be better than one that is just rolled off the cuff.
Preparation and rehearsal will save you from going off on unprofitable or
even untenable side issues, will spare you the waste of precious minutes on
nonessentials, and will substantially assist you in eliminating unhappy turns
of phrase.
I myself feel that I must go over what I am to say if only for one reason:
to time my remarks. There is something inexorable about the ticking of that
courtroom clock, particularly when a firm judge is presiding. When your
time is up, when the Chief Justice leans over and says, "Your time has
expired"—well, you sit down. The stories told of Chief Justice Hughes,
"that on one occasion he called time on a leader of the New York Bar in the
middle of the word 'if,'" and that "once on being asked by the same
gentleman how much time remained, he replied, with beard bristling, '14
seconds,' " 26 may be apocryphal, but they contain more than a germ of
truth. Consequently, you had better know before you start just how much or
how little time your direct presentation will take. If you have three points,
and can only cover two in your 30 or 45 or 60 minutes, revision is
imperative—and you had better make that discovery before you address the
court.
But, apart from timing, I feel that repeating what I want to say is helpful
in many other respects. In going over the case orally, I generally think of
other points to make. Questions arise in my mind that must be checked,
questions of fact and of law alike. I progress gradually to a smoother
presentation, and can sense what to stress, what to eliminate, where to
expand, and where to compress.
More than that, by practicing the oral argument several times, it becomes
fixed in my mind so that when I appear in court I no longer need detailed
notes, but can rely with assurance on headings and subheadings; I thus
avoid the need for elaborate notes that tempt one into reading, or nearly
reading, the argument. See Section 110, below.
26
McElwain, The Business of the Supreme Court as Conducted by
Chief Justice Hughes, 63 Harv. L. Rev. 5, 17 (1949).
If possible, I plan to go over the argument two or three times. That is
often enough to get the context of the contentions in mind, to smooth out
the more obvious infelicities, and to learn just precisely how many precious
minutes I am using; yet I have not so over-rehearsed as to sound in court as
if I had committed my argument to memory.
The result is that, by the time I get up in the courtroom with my striped
pants neatly pressed, the court hears, not my first draft, but my third or
fourth. Frequently, that draft still leaves a good deal to be desired—but at
least it is a much more finished performance than the first.

Section 100. Planning the argument.

—Not only must you prepare your argument so that it will fit into the
allotted time, you must plan its substance as well. This breaks down into
four major aspects.
(a) Selection of Points. What points are you going to make? Are you
going to repeat what was said by other counsel in the related case just ahead
of you? Are you going to stress the points that the other side virtually
concedes? Or are you going to argue at length some unimportant issues that
are very much in dispute? A lot of lawyers choose some or all of these
alternatives—which is another reason for the paucity of good arguments.
Planning in this area involves elimination, but a different kind of
elimination than the process of cutting weak points out of your brief (see
Section 35 (a), supra). When you plan your oral argument, the weak points
have already been taken out of your case, and you now must decide which
of the points that remain you had better relegate to the briefs, and which
you will discuss orally. Never be afraid to say, "The remaining points are
not abandoned, but in view of the limited time, we rest those on our brief."
(b) Avoiding Unnecessary Complexity. Any argument planned to cover
too many points will leave a fuzzy impression. An argument in its essential
outline must be kept relatively simple, else it will fail to leave with the court
a feeling that the case should be decided in a particular way.
It is far better to cover the really important points orally so as to make a
firm impression and then to yield back some of your time, than to use up all
of your time to treat all of your points and then leave the court up in the air.
As Mr. Justice Jackson wrote, "The impact of oral presentation will be
strengthened if it is concentrated on a few points that can be simply and
convincingly stated and easily grasped and retained." 27
(c) Avoiding Improper Emphasis. Most cases present a mixture of
questions; some are easy, some are difficult—often very difficult. Suppose
you have two issues, one in each category. Why stress the hard one when
you can win your case on the one that avoids a great many difficulties? Of
course, even after arguing some difficult, not to say untenable propositions,
you may win in the end. But why go at it the hard way? At any rate, one of
the subjects for planning is to select the easier points for the argument, the
ones that will generate less opposition from the court.
(d) Arguing Principles. Finally, when you are on your feet, argue
principles, and argue them broadly. Leave the details of the decisions to
your brief, where they can be more helpfully discussed. Effecting that
differentiation will be an important feature of your planning.
None of this, of course, means that you can be sure of following your
plan. Again to quote Mr. Justice Jackson,
I used to say that, as Solicitor General, I made three arguments of every
case. First came the one that I planned—as I thought, logical, coherent,
complete. Second was the one actually presented—interrupted, incoherent,
disjointed, disappointing. The third was the utterly devastating argument
that I thought of after going to bed that night.28
This from the man of whom Mr. Justice Brandeis said that he should be
Solicitor General for life! 29 But—and here is a question for the rest of us—
what chance would an advocate have who had never planned his argument
in the first place?

Section 101. Attitude of respectful intellectual equality.

— Another essential of an effective argument is a proper mental attitude
on the part of the advocate.
27 Jackson, Advocacy Before the Supreme Court: Suggestions for
Effective Case Presentations, 37 A.B.A.J. 801, 803.
2SIbid. Compare Rail, Effective Oral Argument on Appeal, 48 111. Bar
J. 572, 588: "Certainly no oral argument is ever as good as the one you
make on your way home."
29 Frankfurter, Of Life and Men (1956) 192.
(a) It will not do to say of a court, as one may perhaps say of one's
spiritual advisers, "They will show us our errors." If a judge asks, "Where
does this power end?" and counsel answers, "That is for this court to say,"
then, inevitably, the judge will reply, "I am asking for guidance." (I once
heard precisely that colloquy in the Supreme Court of the United States.)
Moreover, if the lawyer approaches a court with an appreciation that
amounts to awe, perhaps verging into fear, he will not be able effectively to
stand up to the court's questioning. Counsel simply cannot afford to have a
litter of intellectual kittens in the courtroom while he is arguing his case—
certainly not if he expects to win it for his client. I have myself witnessed
case after case being lost, cases that could have been won, basically because
counsel was so terrified of the tribunal and so in awe of its individual
members that their questions threw him completely off balance, and,
through the mere fact of being asked, quite disabled him from answering. If
you set out to argue an appeal, you must be able to engage in give-and-take
with the judges. They can point out errors only as errors are pointed out to
them.
(b) By the same token, it will not do to talk down to a court, however
much the individual advocate may have been more generously endowed
with quick perception than some of the judges whom he addresses.
Sometimes the lawyer's attitude of superiority rests simply on his own keen
sense of self-appreciation. On other occasions, its basis may be a view
widely prevalent at the bar that old Judge Overshoe just isn't very bright.
And on other occasions, the lawyer may feel that he is such an outstanding
expert in the particular field of law involved in his case that he is the
professor and the judges simply students—not particularly bright students at
that—who are listening to an expository lecture. But, whatever the
explanation in any given situation, such an attitude is wrong. It is wrong as
a matter of protocol, because the theory is that the judiciary is superior to
the bar. And it is particularly wrong as a matter of advocacy, because
advocacy is the art of persuasion, and you do not, by talking down to him,
ever persuade a man who has the power to decide against you.
(c) The only proper attitude is that of respectful intellectual equality. The
respectful part of it is the same quantum and manner of respect and
deference that a younger man should show when speaking to an older one,
or a junior officer in the military service when engaged in official
discussion with a superior much senior to him, or a parishioner talking to a
priest, or the law clerk taking up a point of law with the senior partner.
Beyond that, however, the argument of an appeal must be undertaken by the
advocate on the basis that it is a discussion among equals, whether the
argument is made directly or in response to questions from the bench.
Counsel must stand up to the judges quite as he would stand up to the senior
member of his own firm. If he permits himself to be overawed by
comments or questions simply because they emanate from judges, if he
proceeds on the footing that a chance offhand remark from the bench is
sacrosanct because of its origin and without regard to its intrinsic merits, if
he becomes completely unnerved by a judge saying, "Well, now, I don't
know about that," then he— and his case—are well on their way to being
lost.

Section 102. Flexibility.

—An appellate argument is not a set piece. For one thing, it is in most
courts far from being a monologue, and for another, it must be adjusted and
trimmed according to the reaction it evokes.
Naturally, counsel must make allowance for questions (and, if topside,
for rebuttal) when he plans his argument. If the rules of court permit only
30 or 45 minutes to a side, and judges are prone to ask questions, then,
unless the direct presentation is kept to 20 or 30 minutes, counsel will
simply not, in the ordinary course, be able to cover all his points.
The time allowed by the rules of most Federal appellate courts varies
from one hour to thirty minutes, and only a minority of them allow an
hour.30
In the Supreme Court of the United States the limit is one hour a side,31
unless the case is on the summary calendar, in which event it is only 30
minutes a side.32 (Additional time is only very rarely allowed, and never in
the ordinary case.)33 There the Justices ask many, many questions.
Consequently, any lawyer who appears for a petitioner or an appellant must
plan a direct presentation of not over 40 minutes (20, if the case is on the
summary calendar) . If he goes beyond that, he has no assurance that he will
ever be able to reach everything he needs to say. Moreover, if the
questioning takes up a great deal of his time—more than he has made
allowance for—he must telescope and thus eliminate subsidiary points. He
may, of course, conceivably get an additional allowance of time at the end
by reason of the Court's having used up a great deal of his assigned time.
That has varied in the past, largely with the individual reaction of Chief
Justices; some have sympathized with counsel, others have had more
sympathy with the clock. The governing principle has been that counsel is
not entitled, as of right, to compensation for time taken by judicial eminent
domain.
30 Subject to enlargement by special permission upon prior request, the
following are the current time limits for oral argument:
One hour: First Circuit, Rule 28 (3) ; Fourth Circuit, Rule 15 (3); Fifth
Circuit, Rule 25 (3) ("and the court may allow such less time as shall
appear to it to be sufficient for a fair presentation of the questions
involved in any case"); Eighth Circuit, Rule 13(c); Court of Customs and
Patent Appeals, Rule XXIII.
Forty-five minutes: Second Circuit, Rule 23 (c); Third Circuit, Rule 31
(3) ; Sixth Circuit, Rule 20 (3) ; Seventh Circuit, Rule 21 (b) ; Ninth
Circuit, Rule 20 (3); Tenth Circuit, Rule 20 (3); District of Columbia
Circuit, Rule 19 (c) (automatically upon request).
 Thirty minutes: Eighth Circuit, Rule 13 (c) (for certain matters) ; Ninth
Circuit, Rule 20 (3) (for certain matters) ; District of Columbia Circuit,
Rule 19 (c) (in absence of request); Court of Claims (as a matter of
practice); Court of Military Appeals, Rule 47 (c) .
Therefore, the lawyer must have the essentials of his case so firmly in
mind that, whenever his time is in fact cut down, he will know where and
what to cut, so that, when he is required to sit down, he will have covered
all the vital points. It is not an easy process, particularly when the argument
as finally prepared is already a drastically pruned production; and, absent
such preliminary trimming and cutting, it is, of course, well-nigh
impossible.
Sometimes, in the case of a split argument, counsel can reframe his
remarks overnight, or during the recess. But he must be prepared to make
his revisions on a substantially extemporaneous basis.
Moreover, and this applies even when there is no pressure as to time,
counsel must also be sufficiently flexible to vary his argument on the basis
of the reception it receives. If he has planned to spend, say, ten minutes on
Proposition A, and finds that his initial statement thereof gets nods of
approval from the bench, he need not—indeed, he should not—proceed to
elaborate that proposition further. He should move on to Proposition B. If
his statement of that second principle evokes a similar attitude of assent, he
should once more move on. If the court does not react, he should proceed to
elaborate upon the bare statement. And if he encounters doubts or active
opposition, he may have to expand and detail his argument on Proposition B
far beyond what he had originally intended.
31 Supreme Court Rule 44 (4).
32 Supreme Court Rule 44 (3).
33"Any request for additional time * * * shall set forth with specificity
and conciseness why the case cannot be presented within the one hour
limitation." Supreme Court Rule 44 (4) .
Sometimes these alternative contingencies can be planned far in advance
by setting up one's notes on each point in three parts: the basic proposition,
its elaboration, and its further elaboration. Then, depending on the reaction
from the court, the lawyer can use one, two, or all three portions.
 It is, perhaps, easier, though quite as important, to be similarly flexible
when appearing bottomside. If counsel for the appellant has had stormy
going on Proposition A, counsel for the appellee is wasting not only his
time but the court's as well if he belabors the argument that Proposition A is
simply not so. The mere statement should suffice, since the court obviously
is on appellee's side. Then more time will be available to argue down
Proposition B, as to which the court's reaction appeared favorable to
appellant.
It is not easy to attain the necessary flexibility. If, it were, anyone could
do it. But it is, I am convinced, essential to effective argument.
 CHAPTER VII

SUGGESTIONS FOR PREPARATION FOR

ORAL ARGUMENT

Section 103. In general.

—How should you go about preparing for the oral argument of a case on
appeal? Preparation is essential, as anyone will soon find out if he ventures
to argue a case without preparation. This chapter will discuss the several
aspects of the process, and will set out some approaches and methods that I
have found helpful in my own practice. Here, pre-eminently, the question of
which is the best method depends upon the personality and personal
characteristics of the advocate; methods one lawyer finds helpful may not
be so for any other lawyer. The best method is the one that best enables the
particular advocate to attain his maximum effectiveness. But the problem
can be expressed and discussed in terms applicable to all lawyers and to all
cases. For the rest, my justification for discussing particular methods is that
the discussion will at least be suggestive; and that, here also, the methods
that have helped one lawyer may similarly be of assistance to others.

Section 104. Analysis of the problem of preparation.

—The task of preparation involves essentially three phases. The first is
attaining mastery of the case, becoming thoroughly familiar with the facts,
the applicable law, and the implications of both. Next is the process of
compressing that mastery within the confines of the medium, i.e., within the
allotted time, so that the essentials can be orally conveyed to the court.
Finally, there is the matter of preparing the necessary notes, as an aid to
memory while actually up on one's feet. These three aspects of the basic
task will be discussed in order.

Section 105. Mastery of the case through tabbing of record and

briefs.
 —One very helpful aid to learning a record, already suggested above in
Section 98, is to tab the record with gummed-cloth index tabs, so that any
material portion can be found without thumbing through the pages or
looking in the index.
Nothing is more awkward or embarrassing in open court than the long
and painful pause that takes place when a lawyer is trying to find a critical
document in a record. He thumbs through it, and gets flustered and nervous;
co-counsel do the same; and the court gets annoyed and impatient. Their
time is being wasted by the delay—by this so thoroughly unnecessary
delay. With a tabbed record, counsel need not waste a minute of his time or
the judges'; he can turn instantly to whatever matter is in question.
At the preparatory stage, tabbing is even more valuable, because it places
the elements of the case in their proper perspective. Moreover, it enables the
lawyer who first comes into the case on appeal to get the feel and the
relative position of the pleadings and of the testimony. Tabbing is therefore
particularly important in a case of any length or complexity.
I generally tab all the more important pleadings, all the witnesses (except
possibly some of the purely formal ones who can be lumped together under
a single heading), and all the more important appellate stages.
Thus, in the Haupt treason case,1 an intricate criminal appeal with a
record running to 958 printed pages, the following items were tabbed; they
are given here in the order in which they appeared in the record:
Indictment; charge; motion for new trial; sentence; defendant's
exceptions; assignment of errors; opening arguments; testimony of two
witnesses; colloquy involving a charge of perjury on the part of a witness;
testimony of each of about 28 witnesses, some of whom (e.g., several F.B.I,
agents testifying to the same point) were lumped together; motion for
directed verdict; testimony of each of four defense witnesses; colloquy re
overt acts; colloquy re instructions to jury; court's draft of instructions;
prosecution's requests for instructions; defendant's requests for instructions;
closing arguments; jury's return; rereading of testimony; charge re
rereading; verdict; bill of exceptions; evidence on insanity issue; CCA.
opinion; CCA. dissent; petition for rehearing; reply to petition for
rehearing; dissenting opinion on denial of rehearing.
 All told, including recalled witnesses, this ran to some 64 separate tabs.
In the Line Material case,2 a long and complicated antitrust suit with a
record of 2,340 printed pages, the following items were tabbed:
1 Haupt v. United States, 330 U. S. 631.
2 United States v. Line Material Co., 333 U. S. 287.
Complaint; answers of each of 11 defendants; interrogatories; three
stipulations; testimony of each of 11 witnesses; opinion of the district court;
findings; final decree; motion to amend findings; order denying motion;
assignment of errors.
There were several hundred exhibits, handled as follows: separate tabs
for each 25 Government exhibits, i.e., GX 1, GX 26, GX 51, through GX
476; one tab for the last one (GX 498) and one for GX 400, a large
tabulation out of order; a separate tab for each group of defendants' exhibits,
marking the larger groups in intervals of 25 exhibits each. In addition, each
cross-license agreement involved in the proceeding was separately tabbed.
In all, there were some 89 separate tabs for the entire record.
Naturally, no such elaborate apparatus is required with a short record, but
even in the very thinnest of records, tabbing is helpful at the argument in
facilitating reference—without awkward fumbling—to significant portions
or particular pages. And see Section 122, below, for the tabbing of short
quotations that are to be read to the court.

Section 106. Mastery of the case through reading and rereading

of pertinent materials.
—I have already discussed above, see Section 98, the indispensable if
harsh method of learning a record: reading it, and then rereading its critical
portions. The problem at the present juncture, however, is the more
immediate one of preparation for oral argument. Assuming that you have a
fair knowledge of the case already, how can you bring that knowledge into
sharper focus for the supreme test of oral argument—the final examination,
the time when you must know it, the final event to which all else has been
building up?
 It will generally be most helpful if you start your final preparation by
sitting down and reading all the briefs, consecutively and slowly. In that
way you acquire a working grasp of the arguments on both sides, soaking
up the elements of the case until you become as familiar with them as you
were when you wrote your own brief. If someone else wrote the brief, and
you contributed little more than your signature, then necessarily this part of
your preparation will take longer.
Next, reread the leading decisions on which both parties rely. Here again,
if this is your first glance at the briefs, your preparation will take longer.
But even if you wrote every word of your side's brief, and looked up all the
law singlehandedly, you will still find it helpful to go over the controlling
authorities. Frequently a last rereading will be productive of values and
emphases that just never occurred to you earlier. And of course, if you are
dealing with a brief that someone else wrote, you may be able to get from
your reading of the decisions thoughts that never suggested themselves
even to the able colleagues or juniors who did the research and writing. In
either event, however, rereading of the cases as the day of the argument
approaches is a must if you are to be properly prepared.
It is not necessary to read every case cited in the brief, at least not after
you attain a certain familiarity with the process of advocacy. One's first
argument—that is different. The eager-beaver lawyer on his first time up
will have read and reread every citation, even the statutory provision under
which the appeal was taken, and will probably carry into the courtroom an
abstract of every case cited. I am not ashamed to admit that I did just that
the first time I had a case to argue in the Supreme Court of the United
States. And I knew some Assistant Attorneys General who invariably
prepared for argument by setting one or more juniors in their division to
preparing such abstracts for their use.
I don't feel that this kind of preparation is really necessary for an
advocate of any experience. First of all, with experience one gets the feel of
a case and can judge which are the critical authorities, i.e., those on which
the case will turn, and those concerning which the court will ask questions.
Those are really the ones that need to be thoroughly studied—and if you
don't know those when you are on your feet, the abstracts so laboriously
prepared by the young men won't help you. As for the others—well, in the
unlikely event that some judge should ask, "What were the facts in Jones v.
Schmaltz?," you can always take refuge in, "Well, your Honor, I don't recall
them now, but I do know that that case supports the proposition for which
we have cited it, namely, that postmortem declarations are inadmissible." It
is far more profitable to employ your time in rereading and learning the
controlling decisions than in reading and learning the collateral ones.
The critical portions of the record should similarly be reread. You must
know the opinion below, or the decree, or the findings, or the commission's
order—the points on which your case turns. You must have mastered those.
Similarly, you must be familiar with the crucial portions of the testimony.
The rest of it is not so important. And, of course, with experience you will
learn which portions are, and which are not, vital in a particular case.

Section 107. Rehearsal; compressing the case into workable

compass.
—One judge of my acquaintance once told me that in his judgment the
art of the advocate lay in a lawyer's mastering the case without letting the
case master the lawyer. You must compress your case into workable
compass, so that you can present it within the allotted time and still leave a
positive impression when you sit down. That process involves not only
compression, but also emphasis and elimination—and to be certain that you
have succeeded in your endeavor you must go over your presentation. That
is, you must rehearse your argument, so that the court will hear a finished
oral argument and not simply a first rough draft.
Once more to quote Mr. Justice Jackson,
Do not think it beneath you to rehearse for an argument. Not even
Caruso, at the height of his artistic career, felt above rehearsing for a
hundredth performance, although he and the whole cast were guided and
confined by a libretto and a score.3
The principal reasons why rehearsal is necessary have already been
indicated (see Section 99, above) : to time one's remarks, to smooth out
infelicities, to ascertain where to expand and what to eliminate. The
following sections will consider some of the methods of rehearsing.

Section 108. Rehearsal; informal methods.

 —I always find it extremely helpful to engage in informal rehearsal.
Even while the briefs are still in a very formative state, I find it extremely
useful to discuss the case with all comers. (Since the record is settled by this
time, there is no longer any question of betraying professional confidences.)
I discuss the case with anyone who will listen (and probably with some who
would prefer not to), at lunch, or in the course of conversation, or while
bending the elbow over beer or better—and, by all means, with people who
reflect all sorts and shades of opinion, in order to obtain as wide a variety of
reactions and to evoke as many objections as possible. If my case involves
an antitrust question, I want the big business point of view as well as that of
the trust-busting crusaders. If it turns on an interpretation of the Bill of
Rights, I want the reactions not only of the libertarian Children of the
Dawn, but also of those who subscribe to the give-'em-a-fair-trial-and-hang-
'em school of thought. Those of my listeners who come up with objections
will force me to devise new arguments that I may have overlooked until
then. The more shades of opinion I can sample, the slimmer the possibility
that I will be caught flat-footed or taken by surprise when I actually argue.
In short, to quote Mr. Justice Jackson again, "Use every available anvil on
which to hammer out your argument." 4
3
Jackson, Advocacy in the Supreme Court: Suggestions for Effective
Case Presentations, 37 A.B.A.J. 801, 861 (1951).
This method of informal discussion is also helpful in assisting the
advocate to evolve an intelligible and effective statement of facts.
Whenever someone asks, "What's this next case of yours really about?,"
you have an opportunity to rehearse a brief thumbnail exposition. And
when you have explained your case to people at lunch in such simple terms
that they can follow you between gulps of that day's Blue Plate Special, you
are well on your way toward being able to explain it to a court. By the time
they understand you, any court will.

Section 109. Rehearsal; formal methods.

—The foregoing helps you to work out arguments, to formulate effective
phrasing, and to block out the essentials of your statement of facts. But the
time will come when more formal methods are necessary, if only to
ascertain how much time you are using.
 There are three or four methods most generally used, and of course no
single one works well with every person. Some lawyers prefer to try out
their preliminary efforts on The Little Woman. Others inflict it on a moot
court of generous friends. Still others undertake the task in decent seclusion,
preferably at night, when one is neither disturbed nor disturbing. And a
fourth method is to use a sound tape or similar recording device, and then
play back one's golden words.
As I say, no particular method will work well for every person, nor am I
as positive as I once was that a feminine audience is certain to be too full of
admiration to be usefully critical, on the view that, unless she loves you
dearly, she wouldn't even listen, and hence is too interested emotionally to
be, in fact, your severest critic.
4 Ibid.
It all depends on the lady's qualities. If she is either an able lawyer in her
own right, or knows enough about law to be able to understand what it is
you are talking about, and if—and this is the all important point—and if she
has a sure instinct, then her reactions, not only to particular phrases but also
to particular arguments, will immeasurably assist you in improving your
presentation. If your wife—or current flame, because this is a matter of
perception rather than of status—has the necessary if rare attributes just
outlined, her attachment and affection will be enlisted in the cause of
helping you along the road to improvement; she will avoid the uncritical
admiration, even adulation, that is of course completely useless.
The moot court method is considered very helpful by many lawyers, and
so it is—provided that the members of the moot court ask questions to
develop the critical points in the case, and not simply to inject witticisms.
The real difficulty with this method is that the moot court just never thinks
of the questions that the real court will ask the next day; it is difficult, if not
impossible, to prophesy just what questions will be asked from the bench,
even by judges whose general reactions are fairly predictable.
A variant on the moot court method is to find an audience of one,
preferably a lawyer with appellate experience, who will listen as you go
through your argument. His comments and criticisms will be helpful in
polishing up the next draft.
 Still another method is to talk into a recording device and to play it back.
If you own such a device, this method has many obvious advantages—
although its use may be somewhat disconcerting, for it is probably correct
to say that the most unsettling experiences anyone can have are the first
glimpse of one's own profile and the first time one really hears one's own
voice.
For myself, I formerly preferred to go over my notes in decent privacy.
Now, however, happily married to a woman with unusually perceptive
critical faculties, I rehearse with my wife, all the way from "May it please
the Court" down through "Accordingly, the judgment below must be
reversed." She records the elapsed time, and makes suggestions—the point
about the judge's charge was not clear, the comment about the shifty witness
had better be omitted, the crack about the opposition was amusing but
should go out, the account of the other victims' entry in the room needs
expansion and clarification. Then, in the light of those comments (see
Section 111, below), I revise my presentation, expanding, eliminating,
altering, and changing emphasis wherever necessary.

Section 110. Notes for the argument.

—When your case is called for argument and you get up, what sort of
notes should you place on the lectern before you? Should you have your
argument written out, neatly arranged in a loose-leaf binder? Is it better to
have informal notes instead, which may be either extensive or fragmentary?
Or should you venture to argue without any notes at all?
This is another field where, pre-eminently, individual aptitudes and
habitudes govern. Nonetheless, some general observations can usefully be
ventured.
(a) Argument fully written out? I have no hesitation at all in saying "No,"
emphatically "No," to the suggestion that an argument be written out in full.
If your argument is fully written out, you will read it, and reading one's
argument is high on the list of Things Not to Be Done. See Section 94,
above. Again, if what is there written fails to convince you, go to court and
listen to the readers. After all, if the task of the advocate were the simple
one of reading what he (or someone else) had written out in advance, it
would save time and anxiety all around to record his sound effects and play
them back to the court.
(b) No notes at all? I would normally recommend against arguing
without any notes at all, for two reasons.
First, any lawyer before an appellate court is under distinct mental
pressure: he must be alert, he must have complete control of his materials,
he must be able to make immediate response to questions. Why then add a
second form of mental pressure, the need to keep in mind the precise order
of presentation and every detail of the argument? Notes prevent this second
kind of pressure, and free one's mind accordingly. For it is a distinct
pressure, even when the advocate is blessed with the famous flypaper
memory to which everything sticks. Advocates who are phenomenal
mnemonic athletes, whose feats of memory are still talked about years after
the event, will nevertheless say that they prefer to argue with notes before
them.
Second, arguing a long case without notes is usually so very obvious a
stunt that it detracts from the effect the argument should make. It is as
though counsel were simultaneously juggling five balls while talking—a
wonderful and amazing feat, without question, and one that few individuals
can accomplish. But it takes the court's mind off the argument, and so the
effort fails of its purpose. The object of an argument, after all, is not to
show the court what a wonderful fellow the lawyer is; it is to show the court
what a wonderful case the client has. Anything that distracts the court's
attention from the merits of the client's case is poor advocacy. Of course, no
lawyer should ever be content with less than his best, and there are many
instances when a flash of genuine memory pays off, but the obvious and
planned effort to show off one's own prodigious powers of memory not only
does not contribute anything to a case, it generally detracts therefrom.
The exception, I should say, would be this—a fairly simple case, where
the facts are uncomplicated and the issues are narrow. Then a lawyer with a
retentive memory who is saturated with the controversy may be justified in
arguing without notes. The test is probably a subjective one: Is the lawyer
putting on a show? Or is he so full of his case that his talk about it comes
forth so readily, so logically, and so effectively that he does not need the
help of any auxiliary writing?
 (c) Extensive or fragmentary notes? The question whether one's notes
should be extensive or fragmentary is, of course, the place where the
personal equation looms largest. My own preference now is for very
fragmentary notes, essentially of headings and catchwords, designed to
prevent me from overlooking any points or taking them up in the wrong
order. These notes are annotated when necessary, following the practice
described in subsection (d), below.
The reason for using fragmentary notes rather than fairly extensive ones
is a simple one: I found that, whenever I let myself slip into writing out
notes that were too detailed, I became so dependent on them that it was
difficult to talk without referring to them, and so was virtually in the rigid
and unprofitable position of a speaker with a prepared manuscript before
him, unable to meet the judges eye to eye, and hence hampered in
establishing rapport with them. So—now I use headings and catchnotes.
And, as has already been indicated above in Section 99, by rehearsing the
oral argument several times before actually making it in court, its substance
has become sufficiently fixed in my mind that the fragmentary notes, which
relieve from the pressure of having to remember the number and the order
of points, are entirely sufficient.
(d) Use of references. Regardless of how detailed or compressed your
notes are, they should contain references to the record and to pertinent cases
and statutes, not for the purpose of citing them during the argument, but so
that you have them ready to meet questions and to avoid the necessity of
fumbling through your papers.
Thus, it is well, whenever a case turns on conflicting evidence, to have
your notes contain a record reference to every statement of fact you make.
Don't, don't, don't read those references to the court as you go along; make
your assertions without more; but when a judge leans over and asks,
"Where do you find that in the record?," you are instantly prepared with the
page in question, because you have it right there before you.
In a sharply contested case, this kind of preparation, involving as it does
some fairly extensive documentation, will take a good deal of time. It is,
however, well worth while, because it assures you that whenever the court
inquires about a challenging or apparently questionable statement, you are
prepared to support, with the record itself, what you have just told the court.
After a while, the questions will reflect interest and curiosity rather than
doubt, and a little later, after you have several arguments under your belt,
your statements will have been so regularly backed up by record references
that you will have acquired a reputation for accuracy and reliability. The
goal to aim for is the stage at which the judges will think—or even say—of
you, "When Mr. X tells us that the record shows so-and-so, we know that it
does." So—annotating your notes pays.
Similarly, include references to the decree, or to the findings, or to any
critical portion of the record about which the court will ask, i.e., which it
will want to examine for itself. Do the same with controlling statutes or
decisions, and similarly mark any portions of brief or record that are
important enough to be quoted verbatim to the court. See Section 122,
below.
Needless to say, the habit of marking record references on one's notes is
excellent insurance against inadvertent inaccuracy. By checking your
proposed statement against the record, you will avoid any distortion into
which zeal or wishful thinking might, but for such check, unfortunately lead
you.
Contrariwise, the lack of record references may cause serious
embarrassment. I once heard an eminent practitioner get up in the Supreme
Court of the United States, for a fee that must certainly have run well into
five figures, and begin by saying. "Pursuant to the division of the case
which the various petitioners have made among themselves, I am going to
discuss paragraph X of the decree." Question from the bench: "Where is
that in the record, Mr. Yf" And then there ensued an anguished and frantic
fumbling, by counsel and by his numerous associates, that lasted for some
time.
How much confidence for what was to follow, do you suppose, did a start
of this kind generate in the judicial mind?

Section 111. The actual process of preparation.

—This will be largely a summary of the foregoing, set out in the order in
which I have personally found it helpful to proceed.
 After having discussed the case with everyone who would listen, and
when the day for argument begins to approach, it is time to prepare in
earnest.
I sit down and read the briefs, slowly and consecutively (i.e., appellant's
first, regardless of who wrote it). See Section 106, supra. If there is then
any doubt in my mind as to the precise holding or language of the
controlling decisions, I read those too, not neglecting those relied on by the
other side. Next, I try to formulate the argument with a view to making the
most effective presentation; this may or may not be the order set forth in the
brief.
After that, I outline the argument and thereafter make my first draft notes.
I have found it most helpful to use a legal size scratchpad, and to scribble
notes large enough for me to read easily in court. Then I fill in the necessary
record references, and fill in the indications for matters to be read to the
court. When I am through, I am ready to rehearse the argument for the first
time. See Section 109, above.
Next, I revise wherever revision is necessary, changing emphasis, adding,
or eliminating, as the case may be. It will frequently be necessary to check
against the record, or to reread a leading case or so, or even to embark on an
entirely new bit of research. Then I go over the whole argument again, once
more noting the elapsed time, until finally I feel that I am ready to face the
court.
If the pressure of other work permits, I find it helpful at this point to
reread portions of the record, or even the entire record if it is a short one.
Frequently this last rereading will turn up something I had overlooked, or
something that assumes a different significance in the light of the additional
research since the first reading. And, in any event, this final rereading of the
record always serves to fix it more firmly in mind.
I never put my notes for argument in a binder, because I feel that this
interferes with flexibility. If, for example, the court asks a question about a
topic I had originally planned to cover later on, so that I must now turn to it
earlier than I had planned, it is much easier to have unbound notes that
enable me to discuss the topic inquired about by pulling out the appropriate
pages, and then to resume where I left off when diverted. Ideally, the notes
on each topic can be clipped together. At any rate, notes not clamped into a
binder will be easier to handle. More than that, because they are not
physically rigid, they will be more conducive to a flexible presentation that
adjusts the arguments to the reception they evoke.

Section 112. Peripheral preparation and last minute revisions.

—One of the most important finer points of preparation is what may be
called peripheral analysis, i.e., a study of the fringe points that are apt to
interest an active and well-informed judicial mind. The only safe rule is to
familiarize yourself fully on all related details and on the background of the
law of your case before you get up to argue. Much of this kind of work
turns out to be love's labor lost, because the questions to which you have so
painfully worked out answers may not be asked after all. But if the
lightning really strikes, the extra effort will have been well worth while, and
that which you know down deep to have been just a stroke of luck may to
the court and to the listening bar appear a touch of genius.
It is well to bear in mind, also, that neither your notes nor your
preparation, however complete and thorough each may be, should ever be
regarded as final. When I used to cram for college and law school
examinations, I would feel, on the morning of the critical day, "Well, if I
don't know it now, I never will." But with arguments it has been brought
increasingly home to me that it is a mistake to consider even one's most
carefully prepared efforts as set pieces, and that it is always possible, even
at the last minute, to effect useful additions and revisions that will add to
the persuasiveness and clarity of the ultimate performance. I can think of a
good many arguments I have made that were measurably improved by some
change I wrote into my notes the morning before going to court. Indeed, in
one or two instances, I effected the changes or additions while actually in
court, waiting to go on. And, of course, rebuttal arguments (see Sections
133 and 134, below) must be worked out on a substantially extemporaneous
basis.
One final caution: Get plenty of sleep the night before. Fatigue slows up
the most acute mind, and the lawyer who is physically tired is at a distinct
disadvantage both in presenting his case and in replying to questions. And I
can add, also with the heartfelt sincerity derived from experience, that the
night before an appellate argument had better not be devoted to class
reunions or to gettogethers with the lads with whom you fought the war. A
courtroom is a mighty uncomfortable place for working off a hangover.

Section 113. All alone.

—Once you are up on your feet, you are on your own, and there just isn't
anyone who can help you if you aren't prepared. Your colleagues and the
young men can pass notes and all that, but those are desperate palliatives
for anything but minor details. Unless you know your case at this point, it
won't be known; the time for planning, for joint endeavor, for cooperative
enterprise, has passed; the situation is one for individual initiative, and you
are that individual.
Holmes once said:
Only when you have worked alone—when you have felt around you a
black gulf of solitude more isolating than that which surrounds the dying
man, and in hope and in despair have trusted to your own unshaken will—
then only will you have achieved.5
Well, once you are up on your feet in a more or less crowded courtroom,
it isn't exactly a black gulf of solitude-—but you will certainly have to rely
on your own unshaken preparation, and unless at that point you are well
prepared, you won't achieve.
5 Holmes, The Profession of the Law, in Collected Legal Papers, 29,
32.
 CHAPTER VIII

THE FINER POINTS OF ORAL ARGUMENT

Section 114. In general.

—Having previously considered and discussed the essentials of an
effective oral argument, and the process of preparing to get ready to make
one, we are now in a position to take up some of the finer points, namely,
wherein a good oral argument differs from one not so good. Here again,
trifles make perfection, but perfection is no trifle.
An excellent way to pick up these points by oneself is to go up to court
and just listen. If you are about to argue a case before an unfamiliar
tribunal, it is a very good idea, time permitting, to get there a day or so in
advance, and simply to sit and listen to the cases to get, so to speak, the feel
of the court—how the judges react to particular propositions and
approaches, to what extent they are willing to let counsel proceed in his
own way, to what extent and when they will interrupt with questions, and
the like.
Indeed, even in more familiar surroundings, the student of advocacy—
and every really able advocate remains a student always, since there is
always something to be learned, or relearned— the student of advocacy can
invariably pick up useful pointers just by listening to the arguments of other
lawyers. In a sense, he is like the interne going on ward rounds. By listening
to the really able members of the bar, he will learn what to do, and how the
masters of the business turn it off. And, by listening to the not so able
members of the bar, he will acquire the equally valuable knowledge of what
not to do. Regardless of the quality of the forensic performance, time spent
listening to arguments in court is never wasted.

Section 115. Should an argument be divided between two

lawyers?
—Very frequently, counsel decide among themselves to divide the oral
argument, either because they feel that the cause is too complex to be
effectively grasped and conveyed by only a single advocate, or else—more
frequently—because participation in the argument is viewed as a reward to
be shared. It is not unusual for the lawyer who retains appellate counsel to
insist, more or less strongly, upon keeping a part of the argument for
himself by way of intangible forwarding fee.
First, if the lawyers concerned make such an arrangment, can it be
effectuated?
Some courts prohibit a divided argument. A case on the Supreme Court's
summary calendar must be argued by a single lawyer, "except by special
permission, which will be granted only upon a showing that parties with
differing interests are on the same side." 1 Two circuits permit only a single
lawyer to argue in any case except by special permission requested in
advance,2 two more permit only a single lawyer to appear when the adverse
party is unrepresented.3 Other courts restrict the number of counsel to two,4
sometimes indicating that more may appear by special leave.5
In the Supreme Court, in cases on the regular calendar, "Two counsel,
and no more, will be heard for each side, except by special permission when
there are several parties on the same side." 6 Before the adoption of that
rule, there were instances up to quite recently when three counsel were
heard;7 whether similar relaxation would be permitted today must remain a
matter of conjecture, although—and this is important—the quoted rule goes
on to provide that "Divided arguments are not favored by the court."
The reasons underlying that admonition were adumbrated by Mr. Justice
Jackson, a few years before he served on the Committee that drafted the
Supreme Court's present rules. He wrote:
If my experiences at the bar and on the bench unite in dictating one
imperative, it is: Never divide between two or more counsel the argument
on behalf of a single interest. Sometimes conflicting interests are joined on
one side and division is compelled, but otherwise it should not be risked.
1 Supreme Court Rule 44 (3).
2 Second Circuit, Rule 23 (b) ; Seventh Circuit, Rule 21 (b).
3 Eighth Circuit, Rule 13 (b); Ninth Circuit, Rule 20 (2).
 * First Circuit, Rule 28(2); Third Circuit, Rule 31(2); Fourth Circuit,
Rule 15 (2); Fifth Circuit, Rule 25 (2); Sixth Circuit, Rule 20 (2); Eighth
Circuit, Rule 13(b); Ninth Circuit, Rule 20(2); Tenth Circuit, Rule 20(2);
Court of Customs and Patent Appeals, Rule XXIII.
5 District of Columbia Circuit, Rule 19 (b); Court of Customs and
Patent Appeals, Rule XXVII (7) (appeals from the Patent Office); Court
of Military Appeals, Rule 47 (b).
6 Supreme Court Rule 44 (4).
7In re Yamashita, 327 U. S. 1 (three counsel heard on behalf of
General Yamashita); Dennis v. United States, 341 U. S. 494 (three
counsel heard on behalf of petitioners); United Shoe Machinery Corp. v.
United States, 347 U. S. 521 (three counsel heard on behalf of appellant).
When two lawyers undertake to share a single presentation, their two
arguments at best will be somewhat overlapping, repetitious and incomplete
and, at worst, contradictory, inconsistent and confusing. I recall one
misadventure in division in which I was to open the case and expound the
statute involved, while counsel for a government agency was to follow and
explain the agency's regulations. This seemed a natural place to sunder the
argument. But the Court perversely refused to honor the division. So long as
I was on my feet, the Justices were intensely interested in the regulations,
which I had not expected to discuss. By the time my associate took over,
they had developed a lively interest in the statute, which was not his part of
the case. No counsel should be permitted to take the floor in any case who
is not willing to master and able to present every aspect of it. If I had my
way, the Court rules would permit only one counsel to argue for a single
interest. But while my colleagues think such a rule would be too drastic, I
think they all agree that an argument almost invariably is less helpful to us
for being parceled out to several counsel.8
What more is there to say?

Section 116. Appreciating the limitations of the medium.—

Perhaps the most illuminating insight into the refinements of oral advocacy
is acquired through an appreciation of the limitations of the medium
employed. You are speaking, not writing. Your words are received by ear,
not by eye. Your impact is evanescent; your audience cannot go back and
pick up something they may have missed. There is normally no permanent
record of what you have said—unless you hire a stenographer at your own
expense to take down your deathless prose, and even then the result is
something for your own files, which the court will seldom see.
In the Supreme Court, the public address system that was installed at the
beginning of the 1954 Term has tape-recording adjuncts that permit the
arguments of counsel to be played back, and, as recent opinions show,
concessions and contentions made orally by counsel frequently acquire
unexpected permanence as a result. See Section 125, below. None the less,
the spoken word is still only spoken, no matter how often it is played back.
It still conveys only an aural impression.
8Jackson, Advocacy Before the Supreme Court: Suggestions for
Effective Case Presentations, 37 A.B.A.J. 801-802 (1951).
That salient fact conditions the entire process. Consequently, the basic
caution is, don't let your argument get lost in details. Concentrate on the
broad strokes. To use a visual metaphor, you are painting a billboard, not
constructing a fine-screened half-tone. That admonition carries through
everything you say while on your feet, because any oral explanation or
exposition that is too detailed simply gets lost. In the paragraphs that follow
are set forth some applications of this governing principle.

Section 117. Avoid excessive detail as to dates, facts, and

figures.
—Never be more detailed on facts, dates, or figures in oral argument than
your case requires you to be. Normally, counsel should eliminate months
and days in stating dates, and should use good round figures—except only
when the more detailed presentation is an essential part of the case.
For instance:
Petitioner was convicted by a jury in Nineteen Hundred and Thirty-Eight.
He did not appeal. Thereafter he brought four successive petitions for
habeas corpus, in Nineteen Hundred and Forty, Nineteen Hundred and
Forty-Two, Nineteen Hundred and FortyFive, and Nineteen Hundred and
Forty-Six. The last petition is the one now before the Court.9
Compare the foregoing with the more detailed statement that follows:
Petitioner was convicted by a jury on April twenty-nine, Nineteen
Hundred and Thirty-Eight. Thereafter he brought four successive petitions
for habeas corpus. The first was filed on June four, Nineteen Hundred and
Forty, the second on September twenty-four, Nineteen Hundred and Forty-
Two, the third on August six, Nineteen Hundred and Forty-Five, and the
fourth on January two, Nineteen Hundred and Forty-Six. It is this fourth
petition that is now before the Court.
The latter statement would not be out of place in a brief, but by cluttering
up the years, which are the essential dates, with the unessential days and
months, the lawyer who has framed his oral statement along the lines of the
second example has made it very difficult for the court to follow him by ear.
(The figures in the dates have purposely been spelled out to indicate this,
but if you still doubt the foregoing comments, have someone read the
second statement out loud.)
9 Price v. Johnston, 334 U. S. 266.
On the other hand, there are cases where time is of the essence, as for
example the case of the Station-Platform Warrior, the lad who reported for
the draft on Armistice Day, 1918, and then sought a writ of mandamus in
1945-1946 to compel the Secretary of War to issue him an Honorable
Discharge from the Army.10 There it was vital to the argument for the Court
to know that he reported for duty on November 11, 1918, that he was told to
go home the same day, that on November 14 he was released from any
further obligation to report, and that in January, 1919, he received a
Discharge from Draft plus a check for four days' pay.
More generally, however, it is only the framework that is important; if
you cover that with too much ornamentation and brica-brac, the essentials
of your structure tend to get lost.
It is the same with figures; use good, thumping, round numbers in the
usual case, and don't go into the odd dollars and the pennies unless the case
turns on the little discrepancies—or unless the very coincidence of the odd
figures reflects very close action in concert.
 Normally, avoid confusing details; use years for dates and round numbers
for figures. Paint broad strokes, because the court gets the picture only by
ear.

Section 118. Don't attempt to dissect individual cases in open

court.
—Mr. Justice Cardozo once wrote: "There is, of course, no formula that
will fit all situations in appellate courts or elsewhere. If, however, I had to
prepare a list of 'Don'ts' for the guidance of the novice, I think I would say
that only in the rarest instances is it wise to take up one decision after
another for the purpose of dissection. Such autopsies have their value at
times, but they are wearisome and gruesome scenes." 11
You will be well advised, therefore, to state your cases simply as
establishing broad propositions, and to leave all the details of the particular
decision to your briefs. Unless you do just that, the main thread of your
argument will become lost.
Here are two examples of how a case can be stated in court; the question
is whether post-mortem declarations are admissible in evidence.12
10 Patterson v. Lamb, 329 U. S. 539.
11 Cardozo, Law and Literature (Harcourt, Brace and Co.) p. 37.
(A)
Post-mortem declarations have been held to be utterly inadmissible for
any purpose, ever since Chief Justice Marshall's justly celebrated opinion in
Schmaltz against the Chosen Freeholders in the 13th of Wheaton.13 Their
inadmissibility has never been questioned since the time of that decision,
which has stood as a landmark of the law of evidence, and which has been
followed and affirmed and reaffirmed in a whole stack of cases, all of which
are collected and discussed in our brief. Indeed, but for the decision below,
we should have thought that the proposition was not subject to successful
question.
(B)
 The question of the admissibility of post-mortem declarations was first
passed upon in the case of Schmaltz against the Chosen Freeholders of East
Overshoe, reported at 13 Wheaton 743. That is a leading case, hence it may
be helpful to state the facts out of which it arose:
12 Such authority as there is on this point confirms the conclusion set
out in the text, viz., that they are inadmissible. See Mercy v. Miller, 25
Tenn. App. 621, 166 S. W. 2d 628. There the defendant "testified that,
after James Mercy died and this suit was brought, he came to her and
told her not to worry, he had not given the place to anyone else, and it
was hers; but upon objection this was excluded." The Court affirmed a
decree adverse to the defendant, saying (25 Tenn. App. at 626), "Another
circumstance against her credibility was her attempt to bolster her claim
by her unreasonable story that James Mercy had a post-mortem
conversation with her confirming her claim."
I am indebted for this reference to my former associate, Alvin O.
West, Esq., of the District of Columbia and Tennessee bars.
13 (a) Of course there are only 12 volumes of Wheaton.
(b) The older lawyers always used to cite reports orally as "the 4th of
Wallace," "the 114th Massachusetts," "the 229th United States," and so
on. See, for instance, Mr. Justice Holmes' obituary comments on Daniel
S. Richardson, Esq., in 1890 (Speeches, 47): "His long career is spanned
by the reports between the seventh of Metcalf and one of our latest
volumes." When I first began to listen to arguments in the United States
Supreme Court, the brighter young lawyers (who had picked up the
practice from their seniors) used to do so too. It may be a little bit old-
fashioned these days, but it adds a little flourish, and so might well be
encouraged and preserved.
For two fairly recent examples, see the references in Williams v.
United States, 289 U. S. 553, 564, to "the decision * * * in the 2d of
Wallace," and in United States v. Morgan, 313 U. S. 409, 415, to the
"decision in the 307th U. S."
(c) Please note that the page reference is not given orally. It is omitted
for the same reason that dates and figures should be simplified (Section
 117, above; Section 119, below), viz., to leave a clearer impression of the
essentials.
One Oscar Schmaltz claimed a tract of 120 acres in the Township of East
Overshoe, as devisee under the will of his uncle, Joseph Schmaltz. New
Jersey had a statute at that time—this was in the year 1799—to the effect
that the estates of Revolutionary War veterans should be exempt from
taxation. If the elder Schmaltz were such a veteran, then the land in
question passed to his nephew Oscar, the plaintiff-in-error. But if Joseph
Schmaltz were not a veteran, then his estate escheated for nonpayment of
taxes to the township, represented by the Chosen Freeholders. Now, Joseph
Schmaltz's status as veteran or nonveteran turned on a declaration made,
etc., etc., etc.
Question: Which statement more effectively lodges in the court's mind
the proposition for which you are contending? Question Two: Didn't Mr.
Justice Cardozo hit the nail on the head? So —state your proposition, and
don't dissect individual cases in open court. Relegate their details to their
proper resting place, viz., your brief.
There is one exception to the foregoing: When the court asks you about a
particular case, it is perfectly proper to dissect and distinguish—because
then you are talking about details that are familiar to your questioner, rather
than cluttering up and confusing a broad proposition which you are
presenting to a court that is temporarily unaware of it.

Section 119. Don't cite too many individual cases in open court.

—In a brief, every proposition of law must be supported by authorities, but

this is not only unnecessary in open court, it is generally undesirable to
attempt to rest every proposition on a particular case. Argue principles; see
Section 100 (d), supra.
The following standards may safely be followed for oral presentation:
Generally, do not cite any cases by name in support of undisputed or
hornbook propositions.
Again, do not bother to cite cases by name in support of every subsidiary
proposition of your presentation.
 Where, however, the immediate subject-matter of a principal heading has
not come up recently or involves a somewhat obscure point, it is well to cite
a few of the leading, landmark cases as you go along, by way of reassuring
the court that you are not just spouting law by ear but have solid authority
to support you. Remember —just a few, not the sort of collection you may
properly set out and discuss in your brief.
If the field you are discussing is one in which there have been a number
of recent decisions, it is generally safe to assume, certainly at the outset,
that the judges are acquainted with their own precedents.14 It should not
therefore be necessary to cite many supporting cases orally. Exception One:
When it becomes apparent from the reaction you are evoking that the
judges are in fact not familiar with the decided cases supporting your
proposition, you must of course refresh their recollections. Exception Two:
When a court sits in panels of varying composition, it may more frequently
be necessary to acquaint the sitting judges with what their brethren have
decided.
In any event, do not cite the little cases that simply apply a principle
established by a well-known or fairly well-known leading case, except—for
these matters cannot be disposed of by rigid rules—except when the
satellite or subsidiary case is right on all fours, and except when you are
asked about a particular decision. Indeed, there is really nothing like a pat
citation for silencing a persistent judicial questioner.15
Finally, regardless of the occasion, when you do cite cases orally, content
yourself with a simplified citation. For instance: "and that was held by the
Jones case in the 362nd United States, and again by the Johnson case
decided earlier this Term." "That proposition is fully supported by the
Quercia case, which is discussed at le'ngth in both briefs." "There hasn't
been any question about that rule of law since Lilly against the
Commissioner, with which your Honors are of course familiar."
14 "It does not seem to me safe ever to assume that a judge is able to
recall exact words of a statute or a document, even if he is known to be
familiar with its general terms. * * * But I should make the contrary
assumption about the Court's own precedents, particularly its recent
precedents. I can think of no more dismal and fruitless use of time than
to recite case after case, with explanations why each is, or is not,
 applicable." Jackson, Advocacy Before the Supreme Court: Suggestions
for Effective Case Presentations, 37 A.B.A.J. 801, 804 (1951) .
15 When I argued my first case in the Supreme Court, United States v.
Summerlin, 310 U. S. 414, Mr. Justice McReynolds was in his last year
of active service. He was the last survivor of the Old Guard, and no
doubt his only remaining amusement was the heckling of new
Government counsel as they appeared. He began to question me rather
intently about "Wasn't there a case a few years back that held—"
something to the effect that the United States in commercial transactions
is bound by commercial rules. Through dumb good fortune, I had tried in
the U. S. District Court for Northern Alabama, the previous Fall, a check
case that turned on the decision in United States v. National Exchange
Bank, 270 U. S. 527. It came to mind, luckily enough, and I asked, "Does
your Honor mean the case of United States against the National
Exchange Bank, somewhere around the 270th United States?" "That's the
case!" exclaimed McReynolds, J. It was easy enough to distinguish, and
the old gentleman didn't bother me further during the remainder of the
proceedings.
Don't, for the reasons set forth in Section 117, above, go into further
detail. When you say orally, "There hasn't been any question about that rule
of law since Lilly v. Commissioner, 343 U. S. 90, with which your Honors
are of course familiar," you don't add anything helpful to the presentation
by adding the page citation. Indeed, you only make your thought more
difficult to follow by ear.

Section 120. Other matters that cannot be conveyed by ear.

—By the same token, it is generally not very profitable to attempt to state
legislative history orally, unless the whole case hinges on it, in which event
more detailed treatment is justified. An example of the latter situation was
Girouard v. United States,16 discussed above in this connection in Section
96. Even for that case, however, it was necessary to state the legislative
history in broad and simple terms; compare the statement in open court,
supra, p. 288, with the details that found their way into the opinion from the
brief. See note 19 at pp. 288-289, above.
 In general, it is well to rely exclusively on the brief for anything that is so
detailed that it sounds fuzzy when you attempt to present it orally. The only
test is to try it, i.e., to rehearse it, orally. Regardless of what it is, whether
law, or facts, or what not, if it doesn't leave a distinct impression by ear,
relegate it to the brief where it can be more leisurely—and more effectively
—absorbed by the eye. And never be afraid or ashamed to say, when you
are up on your feet, "We have discussed these cases [or that evidence, or the
legislative history] fully in our brief, so that I won't take the court's time by
discussing the details here." See, for an actual example, pp. 453-454, below.

Section 121. The handling of questions from the bench.

—Replying to the questions asked by the judges is without doubt the
most difficult aspect of oral argument; certainly it is the most stimulating
aspect; and it is unquestionably one of the most important. Yet the basic
principles of this particular problem can be broken down into about three
admonitions.
16 328 U. S. 61.
(a) Learn to think on your feet. As to this, familiarity with the case helps,
and so does thorough preparation, because the more questions you
anticipate, the more answers you will have available to supply when the test
comes. Undoubtedly a ready wit is of substantial aid; practice helps, and
experience helps too, although in large measure quick-wittedness is
congenital; you either have it or you haven't.
I have known some lawyers, able and intelligent citizens, too, who were
simply struck dumb by questions from the bench, questions which they had
anticipated beforehand, and on which they were prepared. The ensuing
silences caused those associated with the case to burn their eyes onto the
floor, hoping against hope that some trap door would open up through
which they could disappear from the horrible scene they were witnessing. If
you are one of those forensically weak, silent men—well, the only known
cure is to stick to estate planning, brief writing, and office conferences. It's
much easier on all concerned.
At the same time, no advocate, however able, will ever be completely
satisfied with any answer he has given. A better one will always come to
mind in the taxicab back to the office, or, as Jackson, J., said in the passage
quoted at p. 298, supra, at home after going to bed that night. I once hoped
to be able to invent a gadget that would make the taxicab or bedroom
answer jump up and hit me while still on my feet in court, but up to now I
have still to report utter lack of success. Perhaps the quest for the perfect
answer comes under the heading of vain regrets, on a par with that dream
brief discussed in Section 20, above. But, like the other, it is probably one
of the inescapable pangs of advocacy.17
(b) Never refuse to answer a question. The precept that counsel should
never refuse to answer a question holds good even if the question is not in
his case, for the normal reaction of the judge who asked the particular
question will be, "Well, I realize that, but I should like to know your
position on the point just the same." The judge will insist, so you had better
be prepared in advance on the more obvious questions that lie around the
edges of your case. If you are not prepared, or if the question comes out of
the blue in a case in which you are otherwise prepared up to the hilt, it is
better to say, "I should like to consider that question further before
venturing an answer," or even to offer to submit a supplemental
memorandum, than to refuse pointblank to answer or, what is even worse,
obviously to try to evade an answer. As Mr. Justice Harlan has said, "No
answer to an embarrassing point is better than an evasive one." 18
17 That Grand Old Man of American law, Professor Samuel Williston,
had this to say of his only argument in the Supreme Court, Boston if
Maine Rd. v. Hooker, 233 U. S. 97: "A defeated counsel often regrets his
failure to give the best possible answer to questions put to him from the
bench, and I have always regretted a failure to answer to my own
satisfaction, at least, an inquiry put to me by Mr. Justice Hughes." But he
added, "A man convinced against his will is of the same opinion still, and
the decision of the Supreme Court carries no mandate to the logical
faculty." Williston, Life and Law, p. 283.
Unreasonable on the part of Judge X to insist? Certainly. But since you
are endeavoring to persuade him, you had better cater to his
unreasonableness.
Here again, there is an exception: Don't answer in any detail if to do so
will take you far away from the thread of the argument, off on an
unprofitable tangent, or when there is a possibility that you may be led to
discuss an issue that is not, and from your point of view should not be, in
the case. In such a situation you must be firm, and you must indicate very
respectfully that you will not be drawn into any such peripheral dissertation.
See pp. 451-452, below, for an illustration.
How can you tell whether you should or should not answer in full? Here
again—it all depends. On the other hand—
(c) Never postpone your answer. Almost as bad as refusal, outright or
barely concealed, is the all too familiar, "I am coming to that later." Few
replies are quite so annoying to a person whom you are endeavoring to
persuade; he asks you now because he is interested now, and you dampen
his interest in your case if you fail to answer now. Apart from that
consideration, which should be fairly obvious to anyone who has thought
about the matter, the fact is that promises that "I will take that up later" are
left unperformed in appellate courts quite as frequently as promises that "I
will connect that up later" are broken in trial courts.
Moreover, and this is another point frequently overlooked, the
circumstance that the particular matter inquired about comes at a different
place in your own prepared outline is really not an adequate reason for
declining to make an immediate reply to a judge who reaches the point
somewhat sooner in his own analysis of the case.
18
Harlan, What Part Does the Oral Argument Play in the Conduct of
an Appeal?, 41 Corn. L. Q. 6, 9.
Some judges simply refuse to accept a postponement. It is said that once
when a question asked by Mr. Justice McReynolds was answered with the
too usual "I am coming to that," the Justice snapped back, "You're there
now!"
Actually, there is only one solution, namely, to supply a stopgap answer
and move on. When Judge Y asks, "Is it your position that the statute is
invalid?," answer, "Yes, that is our position"— and state that you will
develop it more fully later, adding a good reason for postponing full
discussion, as, for example, that the reason will appear more intelligibly
after you have first sketched in your position on points B, C, and D, or after
you have outlined the legislative development of the statute, or the like.
 Always bear in mind that you must have a better reason for
postponement than the happenstance that the point inquired about appears
in a different relative position in your own plan of argument.

Section 122. Quotations in open court.

—The reason for the basic admonition, "Never read your argument"
(Section 94, above), is that reading draws a veil between the advocate and
the court. What is true of arguments as a whole is likewise true of lengthy
quotations from documents or testimony or opinions. So —never read long
quotations to a court. (As is there indicated, see note 15 at p. 283, the rules
of some courts prohibit this practice.) Here again, if you are not prepared to
take this precept on faith, just go to court and listen to the lawyers who read
to the judges copious quotations from decisions or records.
I will not urge, "Never read a quotation"; that would be dogmatic and
unsound. I do insist, however, that you should never undertake to read a
quotation that is over four sentences or so long, because at about the fourth
or fifth sentence the veil begins to form. Therefore, if you do read, the
quotation should be short, and above all pat, else departure from the normal
standard is not justified.
Moreover, if a particular quotation is so essential to your argument that
you feel you must read it, tab it specially in the brief or record (as the case
may be), so that it is ready for you without fumbling, and so that you can
read it smoothly, with perfect transition and without any jerky, jumpy pause.
(But remember that if your quotation is at, say, page 83 in the record, and
you want to turn to that page when you lift up the tab, you must paste the
tab on the leaf that carries pages 81 and 82. If your tab is pasted to page 83,
you will turn up pages 84 and 85.)
Two other cautions: First, read from the paper, not at it; look up at the
court while you are reading, don't bury your nose—and your voice—in your
text. Second, read slowly, so that you convey the full effect of the passage.
There is always a strong tendency, even among the best advocates, to rush
the reading. If you want your quotation to be really effective, you must
overcome that very natural urge.
 Keep your quotations and excerpts short, tab them so that they can be
reached without delay, and read them slowly from the original—then there
is no reason why any veil should come between you and your judicial
audience.

Section 123. Use of a striking phrase.

—In order to present your contentions in simplified form, it is frequently
useful to em-' ploy a striking phrase—a dignified slogan, if you please, but
a slogan nonetheless.
Perhaps this point will become clearer after a discussion of examples.
(a) The issue turned on the constitutionality of an involved regulatory
statute. The entire case was effectively summed up by the statement,
"Petitioner is not being denied due process; on the contrary, this statute
affords him undue process." 19
(b) One of the cases involving the military trials of civilian dependents,
where it was proposed to retry the relator by courtmartial at Boiling Air
Force Base in the District of Columbia;
The question in this case is whether a woman, who all of her life has been a
civilian, may be tried by an Air Force court-martial in time of peace, here in
the District of Columbia and literally within the shadow of the Capitol
dome.20
19 Sunshine Coal Co. v. Adkins, 310 U. S. 381. There were two schools
of thought on the source of this particular gem; one attributed it to Mr.
Justice Jackson, then Attorney General, who argued the case, the other to
Chief Justice Hughes, who presided over the Court that heard it. In 1949,
Mr. Justice Jackson wrote me that "I would like to claim it but if my title
is no better than my memory, it is cloudy."
20 Reid v. Covert, 354 U. S. 1, at the original hearing in the District
Court. The passage in the text was quoted in In re Varney's Petition, 141
F. Supp. 190, 204 (S.D. Calif.) .
(c) A pay case in the Court of Claims: "The question is whether a
correction of a military record 'for all purposes' means something less than
'all', so that it is to be interpreted as 'for all purposes except pay and
allowances.' " 21
(d) A denaturalization case: "The issue is whether a good Nazi can be a
good American." 22
(e) Habeas corpus to review a conviction by court-martial, the contention
being that the preliminary investigation under old Article of War 70 23 was
inadequate. The issue, as phrased by Government counsel, was "Whether,
after a fair trial and painstaking review of the record by the agencies
provided by law for that purpose, the convicted person will be set free
because of alleged errors occurring in the hinterland of the proceedings
long prior to the actual commencement of the trial." 24
If the slogan you have devised is good—really good—it will make an
indelible impression, one that will persist in the minds of the judges long
after the rest of the argument has evaporated and been forgotten.
There is another kind of slogan that will fit almost any kind of a situation
—but that can probably be used only once before any particular bench. One
of these is the opening, "This is a most remarkable case." Now, assuredly,
that will make any court sit up and take notice, even when it later occurs to
the judges that the case is really not so remarkable after all. Another is the
expression, to be delivered with all solemnity, "If ever there was a case
that"— and then you add whatever may be appropriate, and pause—"this is
that case."
21 Darby v. United States, 173 F. Supp. 619 (C. Cls.).
22 Knauer v. United States, 328 U. S. 654.
2310 U.S.C. [1926 to 1946 eds.] § 1542, later A.W. 46 (b), 10 U.S.C.
[Supp. II to 1946 ed.] § 1517, now Art. 32, U.C.M.J., 10 U.S.C. [1958
ed.] § 832.
24See Humphrey v. Smith, 336 U. S. 695. The point had been
extensively litigated in several circuits. See Waite v. Overlade, 164 F. 2d
722 (CA. 7), certiorari denied, 334 U. S. 812; DeWar v. Hunter, 170 F. 2d
993 (CA. 10), certiorari denied, 337 U. S. 908; Henry v. Hodges, 76 F.
Supp. 968 (S.D.N.Y.), reversed, 171 F. 2d 401 (CA. 2), certiorari denied,
336 U. S. 968; Becker v. Webster, 171 F. 2d 762 (CA. 2), certiorari
 denied, 336 U. S. 968; Hicks v. Hiatt, 64 F. Supp. 238 (M.D. Pa.);
Anthony v. Hunter, 71 F. Supp. 823 (D. Kan.).
I had used the phrase that is italicized in the text in some of my own
briefs, but its author was my learned friend, Colonel William J. Hughes,
Jr., of the District of Columbia bar.
Both are effective. But, pretty clearly, they can't be usefully repeated, day
in and day out, before the same judges.

Section 124. Use of maps and charts.

—The need for graphic presentation of matters difficult to describe
otherwise—"one picture is worth a thousand words"—justifies inclusion in
the brief of maps, charts, or patent drawings. You must have those visual
aids in your brief so that the judges can study them at their leisure when the
case is under consideration. But it is a great mistake to rely on the map in
the brief when arguing the case in open court, and equally a mistake to hand
up one set of the applicable exhibits for the use of each member of the
court. What you should do is to have an enlarged copy of the map or
drawing in the courtroom, on a stand or easel, and sufficiently large so that
it can be seen by every member of the bench. (Try it out in the empty
courtroom beforehand to make sure it is really big enough for all essential
details to be seen by all the judges.) And, when you argue, use a pointer as
you explain your exhibit.
Why all this trouble? Because if you hand a map or chart or drawing or
what-not to each member of the court, to be looked at while you are talking,
you are inviting competition with your argument. You are asking the judges
to give you only part of their attention and to donate the balance of it to the
papers that you yourself have placed before them. Just as you cannot make
much of an impression if your audience is simultaneously listening to
another speaker, so you will fail to make an impression if your competition
takes the form of a document or a drawing that you have placed in the
hands of each member of your audience.
When each judge has a map before him, he will study it and let his mind
wander. All sorts of memories will come to mind. 'Wallula—oh, yes, there
it is. Gosh, I haven't been there since the summer after graduation.
Hummmm, I wonder what ever happened to Susie." Or "Peckham. Yes,
there was a fellow in my class named Peckham who came from Portland
and whose father owned a store. I wonder whether that's the same family."
While these reveries go on, while each judge is demonstrating what a
wonderful distraction a map can be, the court is listening to counsel with
only half an ear. But if there is only a single map up there before the bench,
counsel is the center of attraction, particularly when he is using his pointer;
all the judges are listening to him, and none is making personal excursions
to irrelevant portions of the drawing.
In this instance also, if you doubt what I have been saying, just watch
what happens in court whenever a lawyer relies on copies of a map he has
handed up to each member of the court—then you will certainly agree that
it is a great mistake to rest on the map that is in the record or in the briefs if
you want the court really to understand the case.25
There may, of course, be cases that are helped by a lack of understanding
on the part of the bench. I once argued, on behalf of the Secretary of the
Interior, a motion to dismiss a mandamus case in the former Supreme Court
of the District of Columbia. The case turned on whether a certain tract of
land had been appropriated and set apart for public use. That question
depended on an interpretation of maps and reports contained in
Congressional documents. Well, I ran back and forth between counsel table
and bench, pointing first to one map and then to another—"Now point A on
this map, your Honor, is identical with point G on this second map"—and
so on, until the judge became thoroughly confused and finally said, "Well,
this is a very complicated matter, so complicated that I cannot interfere with
the discretion of the Secretary, who obviously was not acting arbitrarily. I
will grant the motion to dismiss." But, as I say, this technique is only to be
recommended when you are setting out to confuse rather than to clarify.

Section 125. Concessions in oral argument.

—A concession that you make in oral argument will almost certainly be
given effect by the court.26 If you make such a concession advisedly, fine;
but if you do so inadvertently, on impulse or because of less than complete
mastery of the record, you cannot expect the result to be different.
 251 can point to a fairly good batting average in cases where I have
used large maps in the courtroom. United States v. Northern Pac. Ry.
Co., 311 U. S. 317; United States v. Baltimore ir O. R. Co., 333 U. S.
169; Hunter v. Wade, 169 F. 2d 973 (C.A. 10), later affirmed, 336 U. S.
684; Swift & Co. v. United States, 343 U. S. 373.
For an excellent study of this particular problem, see Rail, Visual Aids
in Courts of Review, 52 N.W. Univ. L. Rev. 90.
26 See, e.g., Potts v. Dies, 132 F. 2d 734, 735, note 2 (App. D. C.);
Walker v. Felmont Oil Corporation, 262 F. 2d 163, 165 (C.A. 6); In re
Wells, 281 F. 2d 68, 70 (D. C. Cir.). See also Jefferson Construction Co.
v. United States, 283 F. 2d 265, 267 (C.A. 1).
Compare, however, the disclaimer of the defense of qualified privilege
in Barr v. Matteo, 244 F. 2d 767, 769 (D. C. Cir.), after which the case
was remanded with instructions to pass on that issue. 355 U. S. 171. The
Court of Appeals then sustained the claim of qualified privilege, 256 F.
2d 890, after which the Supreme Court disposed of it on the footing that
there was an absolute privilege! Barr v. Matteo, 360 U. S. 564.
This consequence of being taken at your word is to be distinguished from
having your argument misquoted; it is bad enough to lose a case, but
infinitely more painful to one's professional pride to have the adverse
opinion misstate what one actually said. And the reflection that the three
inescapables are death, taxes, and being misquoted serves only partially to
ease the hurt.
In the Supreme Court, as has already been indicated (Section 116, supra),
the arguments of counsel are now taken down on a machine. Many recent
opinions of that tribunal, rendered since the installation of the recording
equipment, establish the importance that attaches to concessions made in
oral argument,27 and thus emphasize the critical importance of counsel's
knowledge of his case.
Hiring a stenographer to take down your argument may be helpful in two
respects: If the other side misquotes you, you are then in a position to
correct the record; see the example set forth in Section 86, supra. Or, if the
mistake is your own, whether because of inadvertence, or even because of
sheer ignorance, you have an opportunity to address a letter to the clerk—or
to move for leave to file a supplemental memorandum—withdrawing or
correcting what you said.

Section 126. An appropriate peroration.

—An appellate advocate's closing words are important, and they should
leave an impression of combined strength and dignity. They must be more
than simply a shouted conclusion while the judges are folding up their
briefs and turning to the papers in the next case. And, although an appellate
court can be moved, it is not a jury; the scope for emotional impact is
distinctly limited when the case is on appeal.
Fashioning a proper peroration presents a difficult problem in any
circumstances, and a particularly difficult one when counsel's time has been
so taken up with questioning that his planned ending no longer serves. All
that can usefully be ventured are the following considerations:
27See, e.g., Mesarosh v. United States, 352 U. S. 1, 7-8, 17-19, 23-24;
Lee Kum Hoy v. Murff, 355 U. S. 169; Bartkus v. Illinois, 359 U. S. 121,
165; Abbate v. United States, 359 U. S. 187, 196; Taylor v. McEhoy, 360
U. S. 709, 710-711; Breithaupt v. Abram, 352 U. S. 432, 438, note 5;
Kinsella v. Singleton, 361 U. S. 234, 243, note 7; Talley v. California,
362 U. S. 60, 66-67, note.
First, you must have some sort of an ending in order not to leave your
argument up in the air, and to avoid tacking on the purely formal "We
therefore submit that the judgment below should be reversed." Come up
with a conclusion in a nutshell, at the very least. For instance:
The result is that, without pausing to repeat or even to sum up, the
totality of errors in this record, particularly those discussed orally, is such
that the conviction now under review simply cannot be permitted to stand.
Next, you should, as a general and all but invariable rule, remain calm
and dignified, making your closing as impressive as possible, carefully
avoiding anything that is even faintly irrelevant.
Thus, if the question for decision is whether the practices in a particular
industry violate the Sherman Antitrust Act, it is a waste of breath and worse
for counsel to wind up on a note of how much the industry concerned
contributed to the war effort. And if the case turns on the sufficiency of the
allegations in a petition for habeas corpus, a peroration built around a letter
from the prisoner, which has obviously been censored through the use of
shears and which is waved under the eyes of the judges, is simply cheap.
Something more impersonal is necessary in order to close. Perhaps I may
be pardoned for including two of my own perorations at this point, the
combined batting average of which was .500.
In the Girouard case,28 which turned on legislative ratification vel non
(see Sections 50, 57, 70, 96, and 120, above):
Thus it is clear that the decisions of this Court in the Schwimmer and
Macintosh cases have been legislatively ratified by the Congress.
Accordingly, unless this Court is now to sit as a Council of Revision, it
must affirm the judgment below.
Well, the judgment was reversed, which prompted Chief Justice Stone to
say, concluding his dissent: 29
It is not the function of this Court to disregard the will of Congress in the
exercise of its constitutional powers.
28 Girouard v. United States, 328 U. S. 61.
29 328 U. S. at 79.
And, announcing that dissent, on the very day he was stricken, with the
last coherent words he ever uttered, he had said, "There has been too much
of this judicial tinkering with statutes." 30
Here is another example, from the Line Material31 arguments (which
were set out in full in Chapter 17 of the first version of this work):
* * * So we say, overrule the General Electric case. But whether you
overrule it or simply distinguish and limit it, we submit that it is impossible
to justify the sort of thing that was done here, because this sort of thing is a
constant menace to the public interest in free competition—and it is nothing
new.
It is nothing that has just recently been dreamed up. It goes back many
years—not, perhaps, to Adam—but certainly to Adam Smith.
 I would like to bring this argument to a close with a single sentence from
Adam Smith's Wealth of Nations, which is just as timely— and just as
timeless—as when it was first written over a century and a half ago. * * *
"People of the same trade seldom meet together, even for merriment and
diversion, but the conversation ends in a conspiracy against the public, or in
some contrivance to raise prices."
We submit that the judgment below should be reversed.
That one got five votes.
Third, there will be a few—a very few—instances, where genuine,
relevant emotion may be very effective. Witness the closing by Senator
George Wharton Pepper in the AAA case: 32
My time is fleeting and I must not pause to sum up the argument I have
made. I have come to the point at which a consideration of delegation is the
next logical step, and that is to be dealt with effectively by my colleague,
Mr. Hale. But I do want to say just one final and somewhat personal word.
30 The reader may perhaps wonder at my continued preoccupation
with the Girouard case. I can only say, by way of at least partial
extenuation, that it worried a good many other people besides losing
counsel (see, e.g., Horack, Congressional Silence: A Tool of Judicial
Supremacy, 25 Tex. L. Rev. 247; American Citizenship: Can Applicants
Qualify Their Allegiance?, 33 A.B.A.J. 95; and the several sequels to the
article last cited, 33 A.B.A.J. at 323, 540, and 663), and that in 1952 it
was legislatively overruled, at least in part. See Section 337 (a) of the
Immigration and Naturalization Act of 1952, now 8 U.S.C. § 1448 (a);
Petition of Scaccio, 131 F. Supp. 154 (N.D. Calif.) ; In re Krause's
Petition, 159 F. Supp. 687 (S.D. Ala.). Compare Section 57, supra, at p.
172 (note 148).
31 United States v. Line Material Co., 333 U. S. 287.
32 United States v. Butler, 297 U. S. 1,44.
I have tried very hard to argue this case calmly and dispassionately, and
without vehement attack upon things which I cannot approve, and I have
done it thus because it seems to me that this is the best way in which an
advocate can discharge his duty to this Court.
 But I do not want your Honors to think that my feelings are not involved,
and that my emotions are not deeply stirred. Indeed, may it please your
Honors, I believe I am standing here today to plead the cause of the
America I have loved; and I pray Almighty God that not in my time may
"the land of the regimented" be accepted as a worthy substitute for "the land
of the free."
All who were present when this peroration was delivered agree that it
was most effective—"too effective" was the way one lawyer on the losing
side put it—and even today, more than twenty-five years later, it still moves
the person who reads it in the cold black-and-white of the reports. Indeed,
the passage exemplifies the observation that the advocate "must be
something of an actor, not indeed playing a well-learned part before painted
scenery, but fighting real battles on other men's behalf." 33
I will cheerfully confess that I cribbed from and built on that masterpiece
from the lips of one who can fairly be characterized as a Nestor of the bar
when, greatly wound up, I participated in the reargument of the court-
martial cases in 1957 that had gone against me the year before. Here was
my closing on that occasion: 34
If your Honors please, I have tried to argue this case with some degree of
objectivity. I have tried to put out of mind as nearly as I can the callous and
somewhat obtuse cruelty with which these two women were treated because
I felt that I could best discharge my duties to this Court, as well as my duty
to them, by dealing with this as a question of constitutional law, which calls
for research, reflection and cogitation.
But I cannot conceal my concern over the seriousness of what is
involved, because this is about as fundamental an issue as has ever come
before this Court, one certainly more vital and fundamental in the
constitutional sense than any that has been here for some years.
And it is fundamental and vital because it poses in stark immediacy the
question of how far we may properly brace ourselves to withstand assault
from without, and yet perhaps sow the seeds of our own disintegration from
within. Because we have here, I think for the first time, a question involving
the impact on the one hand of the supposed needs of the garrison state upon,
on the other, the immutable principles of a free nation.
 33 Marjoribanks, For the Defence, 1-2.
34
Reid v. Covert, 354 U. S. 1; excerpt from Ward & Paul transcript of
argument on rehearing, pp. 95-97.
That is a quotation, "The immutable principles of a free nation," not from
the writings of some cloistered libertarian philosopher, but from the
institution of the Order of the Cincinnati, which was founded in 1783 by the
Revolutionary officers who had pledged their lives and shed their blood that
this country might be born.
I think we will be aided in the resolution of that problem by considering
two sentences from the late Mr. Justice Cardozo's immortal classic, "The
Nature of the Judicial Process":
"The great ideals of liberty and equality are preserved against the assaults
of opportunism, the expediency of the passing hour, the erosion of small
encroachments, the scorn and derision of those who have no patience with
general principles, by enshrining them in constitutions, and consecrating to
the task of their protection a body of defenders. By conscious or
subconscious influence, the presence of this restraining power, aloof in the
background, but none the less always in reserve, tends to stabilize and
rationalize the legislative judgment, to infuse it with the glow of principle,
to hold the standard aloft and visible for those who must run the race and
keep the faith."
If your Honors please, I have been enrolled among the body of defenders.
I hope this Court will keep the faith.
Effective? That, very obviously, is not for me to judge. But one of the
concluding paragraphs of the prevailing opinion may indicate that the
concluding paragraphs of the prevailing argument were not wholly wasted.
Mr. Justice Black, who announced the judgment of the Court, said on behalf
of four of its members:
We should not break faith with this Nation's tradition of keeping military
power subservient to civilian authority, a tradition which we believe is
firmly embodied in the Constitution. The country has remained true to that
faith for almost one hundred seventy years. * * * 35
 Fourth, a word of caution: The Senator Pepper type of appellate
peroration will fit but very few cases, and is wholly inappropriate in any
case unless the following three prerequisites are first fulfilled:
1. Since an appellate court is not a jury—and this is fundamental,
repeated here because so frequently ignored—emotion becomes effective
only when it follows and is rested upon a solid intellectual foundation.
35 354 U. S. at 40.
2. The advocate who undertakes to invoke emotion in an appellate court
must accordingly be learned in the field he is discussing—or else (which
probably amounts to the same thing) have a reputation for learning in that
field.36
3. Finally—he must be 50 years old or over to carry it off. Genuine
emotion resulting from concern over constitutional interpretation is a
sentiment not permitted the young.

Section 127. Courtroom manners and mannerisms.

—It might seem unnecessary to include pointers on how not to behave,
but the list of don'ts that follows has been collected because observation has
indicated that violations occur with distressing regularity.
(a) Never interrupt opposing counsel. It is an unpardonable breach of
manners to interrupt opposing counsel. I add this remark here because I
have heard such interruptions even in the United States Supreme Court.
(b) Don't wander from the lectern. Judges find most annoying the
practice some lawyers have of wandering from the lectern.
(c) Don't see-saw with glasses. One of the unhappiest mannerisms, and
one of the least pleasant to watch, is the habit some lawyers have of putting
their glasses on and then taking them off again, waving them back and forth
as though see-sawing. If you need glasses for close reading, but can't see the
judges' faces through them, or if you need glasses for distance vision, but
can't read with them, then there is only one solution for your next appellate
argument: get a pair of bifocals, and wear them while on your feet. Relax
and enjoy your maturity; don't annoy your judicial listeners by refusing to
admit to membership in the bifocal bracket.
 (d) Avoid unpleasant gestures. Don't for instance, point an admonitory
finger at the bench, or indulge in similar unpleasant gestures.37
36 See John Chipman Gray's well-known comment on Story, J.: "* * *
he was a man of great learning, and of reputation for learning greater
even than the learning itself * * *." The Nature and Sources of the Law
(2d ed. 1921) 253.
37 Compare the remarks of the Hon. William D. Mitchell, Solicitor
General 1925-1929 and Attorney General 1929-1933, at the Proceedings
in Memory of Mr. Justice Van Devanter, 316 U. S. v, xvi, xviii-xix: "* * *
In the same spirit, he was very kind and helpful to me. During my early
experiences as Solicitor General he found the opportunity, very tactfully,
and privately, to suggest ways of improving my court manners. I learned
through him how important it is that the Solicitor General, whom the
Court must listen to week in and week out for years, should be free from
annoying mannerisms. The Court can stand them on occasions, but as a
steady diet they become quite unbearable."
(e) Never grimace. Don't assume a derisive smile while opposing counsel
is addressing the court; this is very bad manners. The only safe rule, for
counsel's weak points as well as for his good ones, is to keep as set a poker
face as you can muster: don't sneer at his poor arguments—and don't look
worried at his good ones. There is one exception: when the court laughs,
don't hesitate to laugh right along with them—quite regardless of the quality
of the humor.
(f) Desist when your time has expired. When your time is used up, and
the other side has had the last word, don't say anything more—except
possibly to ask for permission to file a reply brief. Don't attempt to say
anything more; the court will not permit it. And above all, don't argue for
the opportunity to be heard. Some of the most painful courtroom scenes in
living memory have been the result of lawyers insisting on talking when
they had no right to do so and when the court had already indicated that it
did not desire to hear them.

Section 128. Courtroom attire.

 —When in Rome, do as the top-drawer Romans do. This precept is
particularly applicable as a guide to what the properly dressed lawyer will
wear while arguing a case in an appellate court.
In most appellate courts, it is customary to wear simply a business suit.
Where that custom obtains, it would be a mistake to appear in more formal
attire. But a decent respect for the bench requires that the lawyer's suit be
dark and reasonably conservative, and that his tie be not too strikingly
chromatic.
At the same time, the latitude of colors permitted one's garments may
well vary with the geographical latitude involved. A white linen suit would
probably be regarded differently in Boston than in New Orleans; in any
event, make your inquiry in advance so that what you wear conforms to the
customs of the bar. On occasion, the practice in the Federal court may be
different from that of the local court. Thus, although the advocate in the
Supreme Court of Puerto Rico, in accordance with the old Spanish tradition,
is required to wear a toga, no such garment is worn when he appears before
the First Circuit when that tribunal sits in San Juan for its February
session.38
In the Supreme Court of the United States, some years back, counsel
would not even be listened to if attired in anything less than a long coat.
Consequently, the Clerk used to keep on hand, for the benefit of
practitioners hailing from the forks of the creek (up East Overshoe way),
three long coats: large, medium, and small. Gradually, however, a relaxation
crept in, and the Court began to deign to listen to counsel arguing in
business suits.39
At the present time, cutaways are worn in the Supreme Court only by
Government lawyers and by leaders of the bar from the larger cities. When
private practitioners, not previously known to the Court, appear in formal
attire, the inevitable judicial reaction is, "Here is a man who respects the
highest court." As Mr. Justice Jackson put it, "The lawyer of good taste will
not worry about his dress, because instinctively it will be that which is
suitable to his station in life—a member of a dignified and responsible
profession —and for an important and somewhat formal occasion." 40
My own view, therefore, is that any private practitioner would be well
advised, on any of his appearances before the Supreme Court, to wear
formal dress—even if he has to go out and rent it.41
I assume, however, that the argument will do the costume justice. There
is extant a lovely story concerning one Government lawyer (not now in
public life) who on the occasion of his first argument in the Supreme Court,
appeared in a new—and obviously wholly-owned—cutaway that was a
masterpiece of the tailor's art. He had rough going from the outset, and
indeed had not proceeded very far before Mr. Justice X, an acidulous and
caustic man, leaned over to Mr. Justice Y, sitting next to him, and
stagewhispered all too audibly, "Better dressed than equipped!"
38 Letter from the Hon. Calvert Magruder, for many years Chief Judge,
First Circuit, October 2, 1959. The wearing of the toga was described in
a letter from the late A. Cecil Snyder, formerly Chief Justice of the
Supreme Court of Puerto Rico, quoted at p. 221 of the earlier version of
this work.
39
See Palmer, What Lawyers Wear—Reverie on a Pink-Shirted
Lawyer, 33 A.B.A.J. 529.
40Jackson, Advocacy Before the Supreme Court: Suggestions for
Effective Case Presentations, 37 A.B.A.J. 801, 862-863.
41
Not, however, when he is simply being admitted or when he is
moving an admission.
A word for the ladies: In any court, on any occasion, wear your best basic
black dress or suit with a touch of white at the throat. It is not only
eminently appropriate, it is bound to be very becoming.

Section 129. The saving grace.

—The saving grace is best used sparingly; intentional, deliberate humor
in an appellate court is a dangerous ingredient in untrained hands, and an
attempted joke that falls flat chills the atmosphere into a deep freeze. In this
field much depends upon the court—some are deadpan, sitting like a
collection of wooden Indians, others have a more ebullient temperament.
Moreover, much depends on the advocate concerned; it is only the real
leaders of the bar who can afford to say things that in other mouths would
be inappropriate liberties.
 It may be noted, however, that the danger zone for younger practitioners
lies in the realm of deliberate, purposeful humor, carefully and often all too
obviously planned in advance. Spontaneous wit, so long as it is not lacking
in the necessary quantum of deference, is hardly ever resented; to the
contrary.
In the view that it may be of interest to examine some examples of
permissible light touches, I include a few that have passed muster, or, at
least, that have not backfired.
(a) Action by the United States to validate a claim filed in a probate
proceeding; the State Supreme Court held the claim void because not filed
in time. Government counsel urged that the United States was not bound by
state statutes of limitations; counsel for the estate urged that the state
enactment was not a statute of limitations, but a statute of nonclaim. On
rebuttal:
The contention seems to be that a rose by some other name— might
prove less thorny.42
(b) In the Girouard naturalization case,43 already mentioned at some
length herein (Sections 50, 57, 70, 96, 120, and 126, supra) , the basic issue
was whether Congress, by refusing to amend the naturalization laws after
the Schwimmer44 and Macintosh 45 decisions, and by thereafter re-enacting
the provisions construed in those cases, had legislatively ratified them.
Former Attorney General Cummings, for the petitioner, had argued that the
Congressional refusal to amend was inconclusive, because the issue was, as
he put it, a "hot potato."
42 United States v. Surnmerlin, 310 U. S. 414.
43 Girouard v. United States, 328 U. S. 61.
44 United States v. Schwimmer, 279 U. S. 644.
45 United States v. Macintosh, 283 U. S. 605.
Counsel for the Government urged the significance of the reenactment of
the earlier provisions in the Nationality Act of 1940:
Now this re-enactment, as the legislative history shows, had its origin in
the report of a cabinet committee, of which Mr. Cummings, then Attorney
General, was a member. And whatever may be the attitude of individual
members of Congress, certainly no one could ever fairly accuse my former
chief of lack of courage where legislative proposals were concerned, simply
because they involved burning issues.
The reference was, obviously, to the Court Plan of 1937, and every
member of the Court laughed loud and lustily—joined, let it be noted, by
the former Attorney General.
(c) The case of the Postprandial Patriot, the man who had lunch with his
draft board on Armistice Day, 1918, and then years later attempted to
mandamus the Secretary of War to issue him an Honorable Discharge from
the Army.46 (Earlier, in Section 117, above, I referred to this individual as
the Station-Platform Warrior, but that may well have been an exaggeration,
because the record fails to show that he ever got as far as the railway
station.) His counsel had been asked to say in what branch of the service he
had been, and counsel had not really satisfied the Court on that point.
Government counsel on rebuttal:
I will endeavor to answer that question. Now, he wasn't an infantryman,
because he had never been assigned there; nor was he an artilleryman or a
cavalryman, because, as we have shown, he wasn't really in the Army. But
he did have lunch with his draft board, so I suppose he could be called a
trencherman.
(d) In the last round of cases involving the validity of military trials of
civilians, Government counsel in response to questions from the bench had
contended that court-martial jurisdiction extended not only to the
dependents of military personnel and to civilian employees of the armed
forces, but also to the dependents of such employees, to employees of
contractors, and to the dependents of the contractors' employees as well. On
rebuttal, counsel for the civilians said:
Well, this question of how far the asserted military jurisdiction extends
raises some strange problems. Indeed, in the committee hearings, which
proceeded on the assumption that the jurisdiction was perfectly proper,
there is an amusing passage—at least I find it amusing—which suggests
that while a mother-in-law living with military personnel overseas is subject
to military law, this would not be true of one who was simply visiting.
 46 Patterson v. Lamb, 329 U. S. 539.
And that would seem to point the way towards a new and painless
solution of the mother-in-law problem. [Taking out and looking at watch:]
"Of course we want you to stay just as long as you can, Mother dear, but
unless we can get you down to the airport promptly, you might become
subject to trial by court-martial." 47
Well, that will give some idea of what can be done, within permissible
limits and along wholly relevant lines, to brighten up the proceedings.

Section 130. Avoid personalities.

—Never confuse or detract from your argument by dragging in
personalities. They are bad enough in briefs (see Section 83, above), but
they are infinitely worse in oral argument.
It may well be, of course, that your opponent's disbarment is long
overdue, or that the court below is widely referred to as "Old Man
Necessity" because (of course) Necessity knows no law. Don't introduce
such considerations into argument. The question for decision on appeal is
not whether opposing counsel is a Servant of Brotherhood, it is whether his
client was. And if you are trying to get Judge Schmaltz reversed, the
question isn't whether he is wise or ignorant, it is whether his decision in
this particular case was right or wrong. (Besides, if he is really as obtuse as
you think he is, the appellate court will be aware of that, too; they are likely
to have seen more of his rulings than you have.)
Moreover, counsel on appeal is still a lawyer, and so must maintain the
bar's traditional respect for the judiciary, even when the district judge in
question is known to every member of the appellate court to be wrong more
frequently than he is right. He is still a judge; if the appellate judges think
ill of him, they are free to say so privately; you, however, cannot even
intimate his shortcomings publicly. As a perceptive friend of mine once put
it, "Never forget that there is, after all, a judges' union." Not only do trial
and appellate judges frequently lunch together, in most circuits District
Judges in varying degrees of frequency sit as members of the Court of
Appeals. Like Lord Nelson's captains, they are, certainly with reference to
the bar, a band of brothers. Counsel will be well advised, therefore, to keep
his disagreements with their rulings on a purely intellectual basis.
47 Kinsella v. Singleton, 361 U. S. 234; Grisham v. Hagan, 361 U. S.
278; McElroy v. Guagliardo, 361 U. S. 281. The discussion regarding the
comparative amenability to military law of a mother-in-law temporarily
visiting an officer abroad as compared with that of one living with him
there permanently appears in Uniform Code of Military Justice,
Hearings, House Committee on Armed Services, on H. R. 2498, 81st
Cong., 1st sess., at pp. 876-877.
And don't row with counsel, either. Remain calm, dignified, and
professional. If the opposition is in fact a disgrace to the profession, you
should be at pains not to descend to his level.

Section 131. Sarcasm and bitterness.

—Anything in the nature of sarcasm or bitterness is in the nature of a
personality, because it injects an emotional element into what should be
essentially an intellectual difference of opinion. Hence these also are
improper and should be avoided.
On occasion the temptation to indulge in either or both is a strong one. In
my own experience, I probably yielded to both emotions in the original
argument of the first court-martial cases; 48 some examples—fairly horrible
examples, too—are noted in the margin.49 I will not say that these cases
could or would have been won on the first hearing had a more objective and
dispassionate argument then been made, but the items referred to—and
there were others of the same nature—did not help my cause, and in the
cold, clear, and infinitely painful light of the morning after the original
decisions, I became more and more aware of the probable harm that these
expressions of personal resentment had done.
48 Kinsella v. Krueger, 351 U. S. 470; Reid v. Covert, 351 U. S. 487.
49"So that the tradition which the Government invoked in its brief is
of only 15 years' standing. And I cannot help being reminded of the
freshwater college that was trying to inch into the Ivy League,
announcing that 'It is traditional here that freshmen will uncover as they
 cross the Memorial Quadrangle. This tradition began last Monday.' The
tradition of trying civilians by courtmartial in the American service is
only 15 years old." Ward & Paul transcript, p. 44.
"So I say, I suggest, that it would be much better for the Air Force to
devote its very considerable talents to the material and terrific problem of
maintaining our air supremacy, in a word, sticking to the wild blue
yonder, instead of trying civilian women by court-martial." Id., p. 52.
"But if we can assume that these agreements purported to enlarge the
jurisdiction of American courts-martial, then we have this situation—that
as applied to the Covert case, a woman in the District of Columbia, who
normally could claim her double guarantee of jury trial, is, by reason of
the act of a foreign parliament, following an executive agreement which
does not mention women, deprived of that right to a jury trial here in the
District of Columbia. And of that I say, in the language of Mr. Justice
Grier, on the last page of the 24th of Howard, Haud equidem invideo,
miror magis—it is not so much that I am angry, but rather that I marvel
at it." Id., p. 55.
"Now, how to deal with them. I have suggested the traditional method
for punishing extra-territorially committed crime, namely, by trial in the
first district to which the person is brought or is found. That was not
deemed too difficult in the post-war treason cases. It is true that there is
no power to subpoena witnesses, but the Government had no difficulty
last month in flying eighteen Italian subjects, whom it could not
subpoena, here for the Icardi case. Of course, when that case was thrown
out [United States v. Icardi, 140 F. Supp. 383 (D.D.C.) ], it was rather
too bad, because those were witnesses that could not have been used over
again in other cases." Id., p. 58.
Once more to stress the obvious, in an appellate court emotion must have
an intellectual foundation on which to rest, and it is far better for the
tribunal to be moved to a sense of outrage on its own than for the advocate
to expound his personal feelings of chagrin.
If it is permissible to descend to the jargon of Madison Avenue in this
connection, the situation is one where the "soft sell" is indicated, where
understatement is the most telling weapon. And, lest any reader think this
an admonition too quixotic for a realist world, let him ponder the sheer
power of restrained statement exemplified by the opinion written by Mr.
Justice Brandeis in Wan v. United States.50 To quote Professor Felix
Frankfurter (as he then was), "in the terrible case of Ziang Sung Wan, his
restraint attains austerity." 51 Read that opinion, and ask yourself whether
any degree of emotionalism could possibly have been as effective.

Section 132. Should the client be present during the argument

of the appeal?
—Different considerations apply depending on whether the appeal is
from the judgment in a civil or a criminal case, but they all lead to the same
conclusion: The client should not (repeat, not) be present while his appeal is
being argued.
(a) Criminal cases. Never let your client be present if the appeal involves
a criminal case.
Unless such a case involves simply "a matter of principle," such as a
$100 fine for violation of a municipal ordinance the constitutional validity
of which is in issue, the appellant of record in a criminal case has a great
deal at stake: loss of liberty, loss of reputation, loss frequently of livelihood,
loss of property, and, in criminal tax cases, where substantial civil penalties
follow upon a successful prosecution, loss of money in what are frequently
very sizeable sums. A man would be somewhat less than human if he were
not deeply concerned over these eventualities, and if that concern did not
translate itself into an obviously worried look.
50 266 U.S.I.
51Frankfurter, Mr. Justice Brandeis and the Constitution, 45 Harv. L.
Rev. 33, 105, reprinted in Frankfurter, ed., Mr. Justice Brandeis (1931)
49,
Now, courthouses, whether old or new, whether dingy or shiny, are just as
much hothouses for rumor and gossip as any dormitory in a girls' finishing
school, and therefore the fact that the appellant is making a personal
appearance in the courtroom is certain to find its way to the judges. They
will, accordingly, be looking for him, first out of sheer curiosity, then as a
matter of interest. They will spot him, never fear, and, more likely than not,
they will translate his worried look into a consciousness of guilt. "That
Schmalzberg fellow looks awfully guilty to me." His presence, accordingly,
won't help the appeal, and if you as counsel have rough going with the
court, that circumstance won't help the attorneyclient relationship—
because, inevitably, he will then wish he had retained some other lawyer, on
the view that anyone else but the man actually up would have fared
differently.
So—insist that your criminal appellant client be not present in person.
Have him send an observer, if he is really itchy; after all, the hearing is not
in camera. But don't let him set foot in the courthouse on the day that you
argue his case.
(b) Civil cases. Mr. Justice Jackson suggested that the foregoing rule
should be generally applied, in all cases. He wrote:
I doubt whether it is wise to have clients or parties in interest attend the
argument if it can be avoided. Clients unfortunately desire, and their
presence is apt to encourage, qualities in an argument that are least admired
by judges. When I hear counsel launch into personal attacks on the
opposition or praise of a client, I instinctively look about to see if I can
identify the client in the room—and often succeed. Some counsel have
become conspicuous for the gallery that listens to their argument and, when
it is finished, ostentatiously departs. The case that is argued to please a
client, impress a following in the audience, or attract notice from the press,
will not often make a favorable impression on the Bench. An argument is
not a spectacle.52
52Jackson, Advocacy Before the Supreme Court: Suggestions for
Effective Case Presentations, 37 A.B.A.J. 801, 861.
"Every judge knows that a lawyer is very likely to deliver a different
oral argument if his client is in the courtroom than if he is not. I am even
told that sometimes judges play a little game among themselves called
'Find the Client'!" Rail, Effective Oral Argument on Appeal, 48 111. Bar
J. 572, 574.
The net result is that, regardless of the type of case involved, counsel will
be well advised to insist that his client remain home while it is being
argued.
 Of course, whatever the nature of the controversy, the forwarding lawyer
is not for this purpose to be regarded as a client. The amount or even the
fact of his fee may depend on the outcome, but as a professional man he is
bound to view the matter with more detachment than the actual client.
Moreover, any appellate argument may be counted on to draw a legal
audience, and if the mere thought of fellow lawyers sitting in the courtroom
and listening is apt to evoke latent traits of exhibitionism in the advocate
who is at the lectern talking, changes in his techniques and attitudes are
very much in order. Besides, if the presence of the forwarding lawyer is apt
to worry you, how can you fairly expect him to refer more cases to you in
the future?

Section 133. Rebuttal.

—The first and undoubtedly the most troublesome problem in connection
with rebuttal is whether, when you represent the party complaining of the
decision below, you should get up at all for a second time. This is a problem
—indeed it is frequently a dilemma—that cannot be solved by rote; in the
end one's answer boils down to a matter of judgment-—tempered by
counsel's own temperament.
Advocates of great distinction and ability have suggested that the
privilege of the appellant or petitioner to argue in rebuttal should be
sparingly exercised. Mr. Justice Jackson wrote:
I would not say that rebuttal is never to be indulged. At times it supplies
important and definite corrections. But the most experienced advocates
make least use of the privilege. Many inexperienced ones get into trouble
by attempting to renew the principal argument. One who returns to his feet
exposes himself to an accumulation of questions. Cases have been lost that,
before counsel undertook a long rebuttal, appeared to be won.53
And the late Mr. William D. Mitchell, who was a distinguished Solicitor
General and Attorney General, said in his review of the earlier version of
the present work:
53 Id., at 804.
 Discussing whether reply briefs or reply arguments are desirable, the
author is inclined to resolve doubts by favoring their use. The conclusion
might well have been the other way. It should be a rare case where either a
reply brief or reply argument is justified. In his brief and oral argument an
appellant should be able to cover adequately his case and anticipate his
adversary's. Able judges of appellate courts do not wobble back and forth to
be captured by the litigant who insists on having the last word.54
The considerations governing the filing of reply briefs have been
discussed in the light of the foregoing, in Section 85, supra. The present
section, covering reply arguments, has been rethought with the comments of
Justice Jackson and Mr. Mitchell in mind, and has been thoroughly
rewritten.
First. If your opponent has been obviously demolished by the court, it is
well not to trample on him further by way of a gloating "me too." Not only
is it considered poor taste and worse sportsmanship to kick too hard a man
who is down, but, more important—because a lawsuit is not a game, it
involves serious consequences for the client—more important, such tactics
are apt to kindle a feeling of sympathy for your opponent on the part of the
court. Rebuttal in such a situation has precisely the opposite effect from
what a good closing argument should be designed to accomplish.
Second. Rebuttal is, however, essential, whenever there is a real
argument to answer, or whenever the court is obviously in doubt, or
whenever there is a palpable misstatement to be corrected or even a
residuum of honest confusion to be cleared up. On that score there can be
but little disagreement. While I can look back on quite a few rebuttals that
added little beyond the satisfaction of having had the last word, I can recall
one or two that really advanced the case. It may be helpful to mention them
briefly as examples.
(a) In United States v. Summerlin,55 already mentioned in Section 129,
the question was whether a claim of the United States, tardily presented in a
probate proceeding, could be barred by a State statute of limitations that
was sugar-coated by being called a statute of nonclaim. In rebuttal, I read
from the record that portion of the decree of the State court which in terms
held the claim "void." 56 Chief Justice Hughes really raised his eyebrows at
the sound of that word—and wrote the unanimous opinion reversing the
State supreme court.57
54 Book Review, 64 Harv. L, Rev. 350, 351.
55 310 U. S.414.
(b) In another case that will not be otherwise identified, I appeared for
the Government, which was seeking to overturn the reversal of a criminal
conviction. There were a number of difficult and fuzzy issues in the case,
which, quite frankly, could have gone either way. My opponent, a lawyer of
reputation, had apparently reached the stage of neglecting preparation; in
any event, his argument was rested on a factual foundation that was
demonstrably inaccurate. In ten minutes of rebuttal time, I exposed the
inaccuracy, the judges' faces hardened noticeably, and the respondents went
to jail. In that particular instance, I have no doubt whatever that the
outcome of a case that was far from open-and-shut, not only inherently but
also throughout most of the argument, ultimately turned on the
circumstance that a vital misstatement of fact was exposed by the rebuttal.
Third. Don't get up a second time simply to rehash what has already been
fully covered. The court's questions will normally indicate whether any tag
ends imperatively require buttoning up. Rebuttal is justified only when it
concentrates on the areas of genuine doubt.
In that connection, it is extremely undesirable to come up, ostensibly by
way of rebuttal, with newly generated ideas on essentially tangential points
that could not possibly have been thought through. Don't risk fuzzing up the
final impression your argument left by injecting untested new departures.
Fourth. When you do get up for purposes of contradiction, be sure to go
for the essentials. One of the most outstandingly poor rebuttals I have ever
heard anywhere began with the announcement that "Petitioner's counsel has
been guilty of a misstatement." The courtroom waited expectantly—and
then the mountain brought forth this mouse: "He said petitioner was
president of the corporation when the record plainly shows that he was
simply its vice-president."
58
"The Court is of the opinion that the United States with respect to
filing its claim is in the same position as any other creditor of the estate *
* * and that therefore the claim of the United States is void for the reason
 that it was not filed * * * within * * * months from the time of the first
publication of the notice to creditors * * *." R. 12, No. 715, Oct. T. 1939.
57 "So far as the judgment goes beyond the jurisdiction of the probate
court and purports to adjudge that the claim of the United States is void
as a claim against the estate of the decedent because of failure to comply
with the statute, the judgment is reversed." 310 U. S. at 418.

Section 134. Preparation of the rebuttal.

—Once past the painful question whether, the next problem is how to
prepare an oral rebuttal.
If you are bottomside, representing the appellee or respondent, you can
work your reply arguments into your own notes as you listen to opposing
counsel, inserting them at the appropriate places. It is generally a good idea
to use a red pencil for this purpose, so that you won't overlook the new
matter as you come to it.
If you are topside, the process is much more difficult. Indeed, the
preparation of an effective rebuttal is really one of the hardest points in the
business. And yet it should not be neglected, because, as has already been
indicated, it is often preferable to reply when there are unanswered or
confused questions still Moating around to which decisive answers are
available.
Rebuttal argument should hit the jugular and concentrate on the big
issues; it should avoid a long list of little things, or a whole lot of minor
discrepancies that do not bear on the essentials of the case. Years ago, our
debating coaches at college used to distinguish between rebuttals on the
hunk system and rebuttals on the birdshot system. I am glad to echo their
advice here: eschew birdshot rebuttals.
The process of composing a rebuttal is, necessarily, a continuous one.
First, during your opponent's argument you take notes of matters that he is
misstating or as to which he is wrong, and that you can usefully reply to and
correct. After a while, you can proceed to make tentative formulations of
your outline for reply. That tentative outline will generally need to be
revised as the argument proceeds, because if you have answer X to your
opponent's contention A, and the court picks up X on its own and pretty well
tramples A beyond all recognition, then, for reasons already set forth, you
can cross out that item—and move to another.
By the time your opponent's argument is drawing to a close, you should
have a pretty good idea of the points that are significant enough to warrant
mentioning in a reply—and any doubts should be resolved in favor of
elimination.
As to the items that you decide to mention, two principles are applicable.
First, the opening of your rebuttal should, whenever possible, tie closely on
to your opponent's conclusion. Whenever you can do that, you add
immeasurably to the effectiveness of your reply. Second, unless you have a
great deal of time left over so that you are not pressed by the clock, it is not
safe to leave your choicest bit for the very end—because the court's
questions may eat up your time and thus prevent your ever reaching that
final forensic morsel.
The process of preparing an effective rebuttal, while not easy, is less
difficult than the process of deciding whether to reply, and on what issues.
In this particular corner of the field, pre-eminently, one can only learn the
hard way, viz., by doing—and by reflecting on the rebuttal (or the lack of
one) in the light of the result attained. One's hindsight is of course always
20-20, but continuous retrospective introspection on rebuttals is bound to
sharpen the advocate's vision for arguments still to come.
 CHAPTER IX

THE TASK—AND THE GOAL— OF THE

ADVOCATE

Section 135. The task of presentation.

—The basic responsibility of the advocate, after all, is the task of
presentation—to present the law and facts of his particular case so that the
court will know what the controversy is about, and will want to decide it in
his favor.
That task is conditioned by three factors: the length of the record—the
facts; the complexity of the questions involved—the law; and the interval
allowed for argument—the time.
Each of these three factors varies from case to case. The record may
consist of not over ten printed pages, as for example when the appeal
involves review of the dismissal of a complaint or of an indictment. The
record may run to several hundred or a thousand or even several thousand
pages, when the case represents an appeal in a long criminal trial, or in a
rate-fixing proceeding, or in the usual antitrust case. Indeed, on occasion,
the advocate must deal with what are literally monster records; recent
examples are the 15,937 printed pages in the Communist conspiracy case,1
12,719 printed pages in the North-South rate case,2 16,532 printed pages in
the Hartford-Empire antitrust case,3 and 16,832 printed pages in the Cement
Institute basing-point case.4 (Curiously enough, the record in the DuPont-
General Motors antitrust case 5 was a modest one by those standards; it had
been so thoroughly compressed by counsel that it extended to only 7510
pages.)
The law factor is similarly a variable. The advocate may have a very
narrow legal question to present, one that can be fully and comprehensively
briefed in not over 20 pages. He may have a number of very substantial
points that will have to be carefully condensed to fit within the limits that
many courts currently impose on the length of briefs (see Section 22, supra)
. Or, perhaps, he may be dealing with a very complex series of legal
problems or with a novel and highly significant question of constitutional
law that cannot be adequately treated except in a brief extending to several
hundred printed pages. Thus, in the recent Tidelands Cases,6 the brief of the
United States in support of its motion for judgment on the amended
complaint against the five Gulf States concerned—an amended complaint
only 19 printed pages long— extended to no less than 425 pages. It was
thereafter followed by two reply briefs, of 99 and 34 pages, respectively.
1 Dennis v. United States, 341 U. S. 494.
2 New York v. United States, 331 U. S. 284.
3 Hartford-Empire Co. v. United States, 323 U. S. 386, 324 U. S. 570.
4 Federal Trade Commission v. Cement Institute, 333 U. S. 683.
5 United States v. duPont & Co., 353 U. S. 586.
The factor of time is perhaps the least variable of the three; you get just
so much time—30, 45, or 60 minutes—and it takes a very considerable
showing to get more from any court, what with the pressure of overcrowded
dockets everywhere. In the cases that have monster records, generous
allowances will be made, but even so the advocate's problem remains,
because the enlargement of time is never in direct ratio to the enlargement
of the record.7
Moreover, if the advocate is to succeed, he must make a favorable
impression: his task is to compress the law and the facts of his case into his
allotted time—less interruptions—so that the court will obtain not only a
clear conception of the case by the time he is through, but a favorable
impression of his side as well. This is perhaps the most compelling reason,
though assuredly not the only one, why so many experienced lawyers insist
that advocacy is essentially an art, which can be mastered only through
practice in the application of its governing principles.

Section 136. The task of presentation; a concrete example.

— In Chapter 17 of the first version of this work, there was set out the
complete stenographic transcript of the arguments in a closely contested
antitrust case decided by the Supreme Court about a dozen years ago—
United States v. Line Material Co.8 It was twice argued, and, when finally
decided, resulted in three opinions—majority, concurring, and dissent—that
alone aggregate 76 printed pages in the reports.
6 United States v. Louisiana, 363 U. S. 1; United States v. Florida, 363
U. S. 121.
7 In the cases just cited, eight hours were allowed for argument in New
York v. United States; thirteen hours were allowed for the original
argument in the Hartford-Empire case, and eight more for the
reargument; and eight hours were allowed in the Cement Institute case.
In the movie antitrust cases, United States v. Paramount Pictures, 334
U. S. 131, nine and a half hours were allowed for argument, while in the
recent Tidelands Cases, United States v. Louisiana and United States v.
Florida, thirteen hours were allowed.
These figures include the time for argument on both sides.
The record in the case extended to 2,340 printed pages, of which all after
the first 560 were exhibits—some 500 Government exhibits, and nearly 200
more introduced by the several defendants. By antitrust standards it was
perhaps not a very long record, but it was fairly sizeable none the less.
The principal legal question was the scope of the General Electric9
doctrine, i.e., the extent to which price-fixing under patent cross-license
agreements was legal notwithstanding the prohibitions of the Sherman
Antitrust Act. There were numerous subsidiary questions, some involving
the Sherman Act,10 some turning on the Federal Rules of Civil Procedure,11
and some concerning the patent law.12
That case had to be compressed into a single hour of argument on each
side, since requests by both sides for extra time, made for both argument
and reargument, had been denied.
Essentially, the task of the lawyers who argued the Line Material case
was the same as that of lawyers who present any kind of a case in any
appellate court: to condense the mass of their materials into an
understandable and palatable verbal capsule—to make the case clear to the
court, and to persuade the court to decide it in their favor.
 How would you have tackled that assignment? If you want to see how
four different lawyers went about it, each in his own manner, consult
Chapter 17 of the earlier version. A most eminent critic has suggested, that
"whether * * * examples of oral arguments are of much use may be
questioned." 13 Certainly the printed page "cannot now recreate [the] tone
of voice or the gloss that personality puts upon speech." 14
8 333 U. S. 287.
9 United States v. General Electric Co., 272 U. S. 476.
10E.g., whether the facts brought the case within the rule of United
States v. Masonite Corp., 316 U. S. 265; Interstate Circuit, Inc. v. United
States, 306 U. S. 208; and Standard Sanitary Mfg. Co. v. United States,
226 U. S. 20.
11 Whether the District Court's findings were "clearly erroneous"
within Rule 52 (a), F.R. Civ. P., and whether in any event they were
entitled to particular weight, being based primarily on documents.
12Particularly whether the combination of the dropout fuse patents
with the wet process porcelain box patent fell afoul of the ruling in
Standard Oil Co. v. United States, 283 U. S. 163, 174: "The lawful
individual monopolies granted by the patent statutes cannot be unitedly
exercised to restrain competition."
None the less, the student of advocacy may find it helpful to examine
recorded arguments, if only to study how other lawyers have organized their
materials. A list of more or less recent arguments in leading cases, all of
which are reasonably accessible, is set forth in the margin.15

Section 137. Keying the oral argument to the brief; selection

and arrangement of points for oral argument.
—Obviously, all the manifold details of a case, particularly of a
complicated case, cannot be presented in the limited time allotted to oral
argument, even when that time has been enlarged. Some portions,
frequently many portions, must be left to the brief. As has already been
pointed out (see Sections 116, 117, 118, and 120, above), the basic principle
is that the essentials should be conveyed orally, whereas the filling in of the
details is best left to the brief. Similarly, because the principal propositions
should be covered on oral argument, the subsidiary points must be relegated
to the written argument. There may well be cases where it is desirable to
discuss only the facts orally, leaving all discussion of law to the brief. No
single rule of thumb, here or elsewhere, will fit every case. But it is
essential to understand fully the advantages and the limitations of each
medium, and to apportion your points between speech and writing in order
to achieve the maximum effectiveness in the combined presentation.
13The late Mr. William D. Mitchell, former Attorney General and
Solicitor General, reviewing the first version of this work, 64 Harv. L.
Rev. 350.
14
Frankfurter and Jackson, JJ., concurring in Von Moltke v. Gillies,
332 U. S. 708, 727, 730.
15 Sen. Doc. No. 52, 75th Cong., 1st sess. (the National Labor
Relations Act cases, Labor Board v. Jones ir Laughlin, 301 U. S. 1, and
related cases; and Associated Press v. Labor Board, 301 U. S. 103);
Sen. Doc. No. 53, 75th Cong., 1st sess. (Social Security tax on
employers, Steward Machine Co. v. Davis, 301 U. S. 548);
Sen. Doc. No. 71, 75th Cong., 1st sess. (old age benefit provisions of
the Social Security Act, Helvering v. Davis, 301 U. S. 619).
Partial transcripts of oral arguments in some other significant modern
cases will be found in the reports:
Norman v. Baltimore ir O. R. Co., 294 U. S. 240 (argument of
Attorney General Cummings at pp. 251-272);
United States v. Butler, 297 U. S. 1 (argument of Solicitor General
Reed at pp. 4-13, 48-52; argument of Senator George Wharton Pepper at
pp. 23-44); and
Carter v. Carter Coal Co., 298 U. S. 238 (argument of Frederick H.
Wood, Esq., at pp. 243-255; argument of Assistant Attorney General
Dickinson at pp. 255-269).
A little thought and plenty o£ preparation will generally suffice to
separate those matters that can best be presented orally from those that are
better left to the written argument. The more difficult task of selection is to
choose the points that can be effectively set forth in the oral argument and
to eliminate those that your allotted time will not permit you to cover orally.
Suppose you have three major points; each of them is important, but your
time will allow you to develop only two of them convincingly. Which two
will you pick?
That sort of problem is the elimination test that will separate the cream of
the lawyers from the skimmed milk of the mere attorneys at law; because,
after all, in the famous last analysis, given brains and learning and a
competent grasp of legal techniques, the quality that distinguishes the
outstanding lawyer from the lawyer who is simply very good is a highly
developed sense of relevance.16
And advocacy in open court requires even more: If, as will frequently be
the case, the three propositions in the situation just put are equally relevant,
to what other test for survival or elimination should they be subjected?
Some advocates will select the two propositions that are most dramatic or
arresting, others the two they consider most sympathetic or appealing, still
others those propositions they conceive to be the strongest as a matter of
logic and hence most satisfying intellectually.
On occasion, the same advocate who would select one set of propositions
for presentation to one tribunal would argue the case quite differently if he
appeared before another court or before the same court differently
constituted. Indeed, there may be instances where the division in a
particular court has been so marked that one or two judges will be the swing
men on a particular type of case—and in that event the argument is most
effective if addressed essentially to them.
16 "Mr. Justice Frankfurter compared the lawyer and the scientist. The
lawyer, he said, is distinguished as an 'expert in relevance.' Since the law
touches life in a wider and perhaps deeper way than any other profession,
this ability to ferret out the relevant considerations of any type of
problem is a necessary qualification for the lawyer. The scientist,
however, though highly trained in what is relevant within the limited area
of his field, becomes lost among the maze of conflicting forces that
operate outside his particular specialty." Harvard Law School Record,
vol. 5, no. 9, December 2, 1947.
 All these techniques, obviously, require more than even the most highly
developed sense of relevance: They call for a keen appreciation of the
principles of psychology. It may well be, of course, that psychology in its
present flowering is neither an exact science nor indeed a science at all.
Even so, that circumstance only serves to underscore the view, rather
widely held at the bar, that advocacy in its more expert applications is very
much an art, because certainly in this instance there is no single answer or
formula to solve the problem.
All that can be usefully added here is Mr. Justice Harlan's conclusion:
"You will find that thoughtful selection of the issues to be argued orally is a
basic technique of every good appellate advocate." 17
It should be repeated here, also (compare Section 111, above), that the
order of presentation of points in the brief is not necessarily the most
effective order of presentation for the argument. Frequently it is; often it is
not. The written brief can more easily develop the several propositions
involved in their strictly logical order, whereas the oral argument may need
to depart from that arrangement in order to take up at the outset the crucial
issue, or, it may be, the one that appears to be the only one really in dispute.
Where, for example, an appeal involves a jurisdictional question or one
of appealability, in addition to issues on the merits, the former issue is
almost necessarily the one first reached in the brief. But it can frequently be
deferred or omitted in oral argument, depending on the treatment given it by
the other side in its brief, or on the court's reaction to it at the outset of the
argument.
Contrariwise, in a case involving judicial review of an administrative
order, you may prefer to argue the merits in your brief in advance of the
issue of reviewability. Compare Section 34, supra. Yet, at the argument, it
may be more desirable, in the light of the judicial reaction to the appellant's
contentions, to mention reviewability first in order to dispose of it, and then
to devote the balance of your time to the merits.
17
Harlan, What Part Does the Oral Argument Play in the Conduct of
an Appeal?, 41 Corn. L. Q. 6, 8.
There is no set formula that will fit every case. The only standard is that
of flexibility (Section 102, supra) ; the decision in the end must depend on
the advocate's judgment of the way the argument is developing.

Section 138. An exercise in persuasion.

—The presentation of a case to an appellate court, like any other instance
of advocacy, is an exercise in persuasion: You seek to make the judges
decide in your favor. Everything must be bent to that end—every sentence
in the brief, indeed every footnote; every sentence in the oral argument;
every mannerism, every gesture, even the advocate's attire. Every form of
oral advocacy involves the impact of one personality on others. In an
appellate court, it is the impact of the lawyer on three, five, seven, or nine
judges. Though the number on the bench may vary, the advocate's aim
remains the same: he must always, persistently, constantly, unflaggingly
seek to persuade a majority of his listeners to agree with him.
That being so, he does not help his cause if he antagonizes his judicial
audience—or any of them. One never persuades by antagonizing. Flank the
difficult forensic obstacles if hitting them head on repels your listeners. The
frequency with which counsel will fight a court, either generally or on
specific unessential propositions, serves to underscore the extent to which
some lawyers overlook the obvious, viz., that advocacy is an exercise in
persuasion, and that the advocate is, in Mr. Justice Frankfurter's fine phrase
(p. 281, supra), a "practitioner of the art of persuasion."

Section 139. The dangers of crusading.

—A crusader, in this connection, is any lawyer who identifies himself too
closely or too emotionally with his cause. Once a lawyer starts crusading,
he loses the objectivity he needs, he begins to slop over, he rapidly dimishes
his effectiveness, and he becomes that stock, hackneyed, and yet constantly
reappearing character, the lawyer who represents himself and who in
consequence has a fool for a client.
My favorite story on the difference in function between lawyers and
crusaders may be apocryphal, though I heard it many years ago from one of
high authority who could qualify as "a source believed to be reliable." Here
it is:
 After the landslide election of 1928, President-elect Hoover was
experiencing some indecision regarding the appointment of an Attorney
General; consequently, he called upon Chief Justice Taft and besought that
eminent statesman's counsel.
The Chief Justice warmly urged the merits of Solicitor General Mitchell,
praising that gentleman's learning and competence, and stressing the respect
and esteem and confidence with which the Supreme Court regarded him.
Mr. Hoover did not at first warm to the suggestion. Yes, Mr. Mitchell was
a fine lawyer, "but he hasn't got an aggressive enough personality. I want
someone who will take this issue of Law Enforcement"—this was still in
the era of the Experiment Noble in Purpose—"who will take this issue of
Law Enforcement to the people, and really go crusading on it."
"Why, Mr. President!" said the Chief Justice, who had himself been Chief
Executive, "you don't want a crusader. You've got to do the crusading
yourself. What you need is a lawyer!"
I wish it were possible for me to document, with chapter and verse and
collection of horrible examples, the timeless truth and the enduring wisdom
of Chief Justice Taft's remark. I wish I could cite the numberless instances,
since 1933, in court and out, of the ineffectiveness, not to say
incompetence, of the attorneys at law who took to crusading, when by
remaining detached they could have done an infinitely better, an infinitely
more professional, and an infinitely more effective job.
At this juncture I shall have to content myself with a single example,
exact identification of which will necessarily be fuzzy.
Some years back a man was convicted under extremely unfair
circumstances. Briefly, after the prosecutor's motion to nolle pros. was
denied, he said he could not conscientiously prosecute, and walked out of
the courtroom. The judge thereupon called and examined the witnesses
himself, and, after hearing the testimony, found the defendant guilty! A
crusading organization became interested in the case, and it retained a well-
known, well-advertised, and (financially) completely successful lawyer to
perfect the appeal. That appeal was heard by an appellate court of which the
less said the better; some of its members later resigned, some were indicted,
and its judgments in quite a number of cases were later set aside after
extensive litigation because of the corruption with which they had been
tainted. This was the court that affirmed the judgment of conviction.
The well-known lawyer thereupon loudly announced that he would
petition for a writ of certiorari. Without question, he had a good cert, case,
and even the old Court—this was before 1937— would have reversed.18
But, even as counsel was talking pretty big about what he would do in the
Supreme Court, he failed to move for a stay of mandate, the mandate went
down, sentence could not be stayed further—and the great case became
moot. "You don't want a crusader, Mr. President; what you need is a
lawyer!"
One further caution may not be out of order. When you are opposed by a
crusader, avoid the temptation to go countercrusading against him. His
emotional instability, his muddy thinking, will all strongly tempt you to
have at him in kind. Resist the temptation. Remain detached, lawyerlike,
and professional. If you have to operate on him, do so with the calm,
impersonal deftness of a surgeon with a scalpel. It may not be as much fun,
but it will be more effective—and your crusading opponent will find your
technique, if not so immediately painful, certainly more deadly in the end.

Section 140. Inner conviction.

—Assuming that the advocate has the technical equipment, assuming that
he has mastered not only the principles of advocacy but also the art of
applying them, what extra, added feature is there that distinguishes the
really outstanding advocate from the run of just able advocates?
In my view, it is an inner conviction of the soundness and correctness of
his case. That is not just fervor, and most assuredly it is not crusading, with
its screaming and its inevitable concomitant inaccuracies. It is, rather, an
abiding conviction that law and justice are both on your side, certainly as to
the points you are making.
This inner conviction is often self-induced, frequently by an involved
process of rationalization, but it is none the worse for that. The important
thing is that you have it, so that you believe what you are saying, or at least
believe the reasonableness of what you are saying, and that you are not
simply repeating a line of patter, tongue in cheek.
 As I review the cases I have argued in appellate courts, it seems to me
that, in the present connection, they fall into three groups. Some I believed
in wholeheartedly from the start, even passionately, so much so that it took
an effort to avoid slopping over. Others were essentially indifferent cases,
as to which I had no particular conviction one way or the other at the outset,
but where the joy of battle, as it were, eventually induced a belief that I was
right. (O.K., turn the psychologists loose on that one!) In the third group, I
had grave doubts when I started, and I needed to explore the authorities
very thoroughly before I found an approach or a theory to which I could
really subscribe. Not until then was I able to argue those cases with
conviction.
18A similar conviction in a British Empire case was reversed by the
Privy Council on statutory grounds. Adan Haji Jama v. The King, [1948]
A.C. 225. 19 United States v. Line Material Co., 333 U. S. 287.
Possibly a concrete example may serve to clarify the sort of mental
turmoil that precedes the acquisition of the requisite inner conviction.
In the Line Material case,19 the Government's original argument had
hammered at the doctrine of the General Electric case,20 which had held
that price-fixing under a patent license did not violate the antitrust laws.
That argument rested in part on economic grounds, in part on some strongly
held views as to the social values implicit in a patent, and in part (by way of
conclusion from the foregoing) on what was conceived to be the proper
scope of the patent grant. That argument was nothing more or less than a
statement of the credo of the Antitrust Division of the Department of
Justice, the Gospel According to Thurman Arnold, and it had been ably
presented by the late Assistant Attorney General Wendell Berge.21 It failed,
however, to gain the concurrence of a majority of the Court, and, Mr. Berge
having meanwhile resigned from the Department, the Line Material case
was set down for reargument.22
It was then assigned to me, and I had the benefit, not only of the briefs
originally filed, but of a stenographic transcript of all the original
arguments. I studied record, briefs, and arguments, read a good many
decisions, and soaked myself in the atmosphere of the antitrust-patent field.
Of course I wanted to win, and, whatever the merits or demerits of the
actual case, I viewed it as the leader of the defeated faction in the primary
looked on the party's ultimate nominee: "Sure, he's a so-and-so—but he's
our so-and-so now." But—I could not subscribe to the tenets of the
Antitrust Religion. Perhaps salvation lies that way; no matter, I could not
with conviction recite the patter of the anti-General Electric syllogism. As
the old preacher said, "And if I do not march in step, it is because I hear a
different drummer."
20 United States v. General Electric Co., 272 U. S. 476.
21 It was set forth at pp. 509-525 of the earlier version of this work.
22 Journal, U. S. Sup. Ct., Oct. T. 1946, p. 275.
Thereafter, I got busy on the facts, and proceeded to analyze the General
Electric case as a matter of logic. Eventually I convinced myself that, on the
facts, the Government was entitled to a decree without any change in law,
and I likewise convinced myself of a logical flaw in the General Electric
case, viz., that the provision in the agreements in question for the
maintenance of the patenteelicensor's own prices did not contribute to the
protection of the patent, which was the sole announced justification for the
General Electric doctrine.23 After that I had no more inner qualms, and
whatever else may be said of my efforts on reargument, they certainly
cannot fairly be criticized for reflecting any want of conviction.24
To resume: It is, I am convinced, essential to effective advocacy that the
advocate have, before he gets up, an abiding inner conviction of the justice
of his cause. How he acquires that feeling —whether he starts with it or
generates it in the process of preparation—is not really important. But if he
is going to carry conviction to his listeners, he must first carry conviction
within himself.
Thus, one of his former partners said of Mr. Justice Brandeis,
The prime source of his power was his intense belief in the truth of what
he was saying. It carried conviction. Except in capacity to bring about a
favorable settlement, he was no good on the wrong side of a case.25
And other lawyers of distinction have given expression to the view that,
absent a feeling of inner conviction, an advocate will not appear at his best
—and will not make as effective a presentation to the court.26
 23"If the patentee * * * licenses the selling of the articles, may he limit
the selling by limiting the method of sale and the price? We think he may
do so, provided the.conditions of sale are normally and reasonably
adapted to secure pecuniary reward for the patentee's monopoly." United
States v. General Electric Co., 272 U. S. 476, 490.
24 See pp. 541-556 and 572-574 of the earlier version of the text.
25McClennen, Louis D. Brandeis as a Lawyer, 33 Mass. L. Q. (No. 3,
Sept. 1948) 3.
26Thus, the late Mr. W. D. Mitchell, a former Attorney General and
Solicitor General, wrote in his review of the first version of this book (64
Harv. L. Rev. 350, 352):
"Mr. Wiener points out that appellate advocacy is an effort at
persuasion
Section 141. The ultimate tribute.
—We have been going upward and onward in this chapter, from the task
of presentation as such to the art which, over and above any technical
equipment, that task requires; and we have discussed also the advocate's
need for possessing a highly developed sense of relevance and an abiding
inner conviction of the Tightness of his cause.
He must have all those qualities if he is to reach real heights. What, then,
is the ultimate to which he may aspire?
I venture to suggest a fitting goal for the advocate, one that may well be
unattainable for all but a few, but that is worth striving for none the less. It
is this: so to present a case that judges will say to themselves when they
hear him, as Chief Judge Cardozo of the New York Court of Appeals used
to say when he heard Mr. Charles Evans Hughes, "How can I possibly
decide against this man?" 27
When your argument evokes such a reaction, you will have reached the
heights!
and that a lawyer who believes he is right is the more persuasive because of
that. Although this poses a question which may be one of professional
standards, it does bear on effectiveness of oral argument. Some lawyers are
willing to take a case, if it presents what they describe as an 'arguable'
position, on the theory that every man is entitled to have a lawyer present
his case. Other lawyers decline cases which they consider are without merit,
because they take no professional satisfaction in arguing them; and because
the litigant deserves to have his case presented by a lawyer (if one is
available) who believes in it and who, therefore, can argue it more
persuasively. It also is true that a lawyer who becomes known as one who
does not make a practice of accepting cases in which he does not believe,
has a long start in the confidence of the courts and on the road to victory."
27 And see the letter of Mr. Justice Frankfurter in the Washington Post,
Dec. 16, 1952, quoting Mr. Justice Holmes' comments on Solicitor
General Lehmann: "When the full force of Lehmann's moral energy is
enlisted in an argument, I hardly dare decide against him."
FOURTH PART
AND IF YOU LOSE—
 CHAPTER X

REHEARINGS

Section 142. Petitions for rehearing; in general.

—Petitions for rehearing can be more poetically—and more accurately—
labeled "Love's Labor Lost": The normal petition for rehearing has about
the same chance of success as the proverbial snowball on the far side of the
River Styx. This is particularly true when the points raised in such a petition
have been fully set forth in a dissent, which is to say that they have already
been considered by the court. In that event, to ask for a rehearing by the
same judges is an utter waste of time, money, labor, and good white paper.
After all, if the dissenting judge or judges were unable to persuade their
brethren in the conference room and in chambers—i.e., in oral discussions
face to face and without any limitations as to time—it is absurd, indeed it is
fatuous, to suppose that losing counsel will meet with more success simply
by presenting a necessarily abbreviated written document.

Section 143. Petitions for rehearing; basic reasons for denial.

—Charles Evans Hughes, in the interval between his two terms of service
on the Supreme Court, wrote that "Petitions for rehearing are an
improvement on the tavern 1 as counsel may enjoy the luxury of telling the
Court to its face what is thought of its opinion * * *." 2 Later on in the same
passage, he quoted Mr. Justice Bradley on the subject, a quotation which
goes to the heart of the matter:
It ought to be understood, or at least believed, whether it is true or not,
that this Court, being a Court of last resort, gives great consideration to
cases of importance and involving consequences like this, and there should
be a finality somewhere. This custom of making motions for a rehearing is
not a custom to be encouraged. It prevails in some States as a matter of
ordinary practice to grant a rehearing on a mere application for it, but that
practice we do not consider a legitimate one in this Court. It is possible that
in the haste of examining cases before us, we sometimes overlook
something, and then we are willing to have that pointed out, but to consider
that this Court will reexamine the matter and change its judgment on a case,
it seems to me, is not taking a proper view of the functions of this Court.
Your application is a proper one to be made, but this matter of motions for
rehearing has become—I won't say a nuisance, but very disagreeable to the
Court.3
1Compare Section 3, p. 5, supra. See also Jackson, Tribute to Country
Lawyers: A Review, 30 A. B. A. J. 136, 139: "* * * this vanishing
country lawyer * * * never quit. He could think of motions for every
purpose under the sun, and he made them all. He moved for new trials,
he appealed; and if he lost out in the end, he joined the client at the
tavern in damning the judge —which is the last rite in closing an
unsuccessful case, and I have officiated at many."
2 Hughes, The Supreme Court of the United States, 71.
Except where something has been overlooked, the routine or
indiscriminate granting of rehearings reflects inadequate consideration of
the appeal on the original hearing. As Mr. Justice Frankfurter said in his
concurring opinion in the Western Pacific Railroad Case*
Rehearings are not a healthy step in the judicial process; surely they
ought not to be deemed a normal procedure. Yet one who has paged the
Federal Reporter for nearly fifty years is struck with what appears to be a
growth in the tendency to file petitions for rehearing in the courts of
appeals. I have not made a quantitative study of the facts, but one gains the
impression that in some circuits these petitions are filed almost as a matter
of course. This is an abuse of judicial energy. It results in needless delay. It
arouses false hopes in defeated litigants and wastes their money. If petitions
for rehearing were justified, except in rare instances, it would bespeak
serious defects in the work of the courts of appeals, an assumption which
must be rejected.
The other side of the coin appears in an opinion of the same Justice
dissenting from the denial of a petition for rehearing:
Because I deem a reargument to be required, I do not mean to imply that
it would lead to a different result. The basis of an adjudication may be as
important as the decision. The Court has rightly been parsimonious in
ordering rehearings, but the occasions on which important and difficult
cases have been reargued have, I believe, enhanced the deliberative
process.5
3 Ibid., 71-72. See also the paragraph which follows:
"Probably the most argued case on record is that of Pennsylvania v.
West Virginia [262 U. S. 553, 623; 263 U. S. 350] with respect to
interstate commerce in natural gas, a case that was thrice argued, then
decided, and the decision was followed by a rehearing; then three judges
dissented from the final decision as they had from the first one,
demonstrating that harmony does not always wait on argumentation."
4 345 U. S. 247, 268, 270.
5 Detroit v. Murray Corp., 357 U. S. 913, 915.
Section 144. Petitions for rehearing; additional reasons for
denial.
—In part, of course, the low batting average of petitions for rehearings
illustrates a very human trait. Most persons do not like to change their
minds once they have made them up—and most judges share that well-nigh
universal reaction. There is extant a letter from Mr. Justice Holmes that
says, "I guess * * * that the defeated side will apply for a rehearing hinting
that we don't understand the patents and that the application will be denied
in the belief that we damned well do." 6 Rarely has a prediction been more
fully—or more quickly—fulfilled.7
It is only on the rarest occasions that a judge can be induced to view the
same case differently once he is publicly committed to a particular course of
reasoning on the issues that case involves. Confessing error afterwards does
not involve the same degree of painful anguish; witness the announcement
of three justices that they had changed their views on the flag salute issue,8
and the comment of another that he would vote differently than he once had
on the scope of the Fourth Amendment.9 Where the earlier view had been
expressed in a different capacity, backtracking is of course easier; here the
classic instance is the graceful admission by Mr. Justice Jackson that an
opinion he had signed as Attorney General on the same issue was, on
reflection, completely wrong.10
 6Letter Holmes to Laski, Feb. 14, 1930, 2 Holmes-Laski Letters
(Howe ed. 1953) 1224.
7 The case was Minerals Separation Corp. v. Magma Copper Co., 280
U. S. 400, decided Feb. 24, 1930 (No. 71, Oct. T. 1929). A petition for
rehearing, filed March 21, 1930, urged inter alia at p. 15
"misunderstanding of the meaning and effect * * * of the direction in"
the patent in suit. The files in the case—this was before the denial of
petitions for rehearing was noted either in the Journal or in the reports—
disclose that the petition was denied on April 14, 1930.
8 See Jones v. Opelika, 316 U. S. 584, 623.
9 See On Lee v. United States, 343 U. S. 747, 762.
10McGrath v. Kristensen, 340 U. S. 162, 176. The Attorney General's
opinion in question was 39 Op. Atty. Gen. 504.
Another example is Lewis v. Manufacturers Nat. Bank, 364 U. S. 603,
610, where Mr. Justice Harlan disavowed an opinion in which he had
joined while one of the Circuit Judges for the Second Circuit.
See also Frankfurter, J., dissenting, in Henslee v. Union Planters Bank,
335 U. S. 595, 600: "Wisdom too often never comes, and so one ought
not to reject it merely because it comes late. Since I now realize that I
should have joined the dissenters in the Merchants Bank case, 320 U. S.
256,1 shall not compound error by pushing that decision still farther. I
would affirm the judgment, substantially for the reasons given below.
166 F. 2d 993."
Where, following the first argument, no opinion has been delivered, no
one is publicly on record, and many votes in such situations have gone the
other way following reargument. The Income Tax Case in the 1890's is the
best known instance,11 though there have been others.12 But when an
opinion has once been announced and subscribed, it requires a rare degree
of open-mindedness and intellectual humility for any judge to admit error
on the identical issue in the very same case. Mr. Justice Harlan's opinion on
rehearing in Reid v. Covert13 is an example of this most unusual kind of
admission—the only one, to my knowledge, that is to be found in the
Supreme Court reports.
 Section 145. Rehearings granted in Courts of Appeals.
—By way of preliminary, it should be noted that, in this section as well
as in those following, "rehearing" is used in its narrow technical sense of a
second consideration following a decision. Otherwise stated, "rehearing"
does not include a mere "reargument," which follows a court's failure to
arrive at or to announce a decision following its original consideration of
the cause.13"
Petitions for rehearing in Courts of Appeals that succeed not only in
being granted but that induce the same three judges to arrive at a different
result are, necessarily, infrequent.14 Occasionally a petition for rehearing,
while in form denied, nonetheless broadens the scope of the order
remanding the case.15 In most other instances, the grant of a rehearing
reflects a later controlling decision 16 or a later controlling statute or
regulation." In any Federal court, the question of its own jurisdiction is
always open, and one circuit frankly told counsel that he need not apologize
for raising a jurisdictional question only on petition for rehearing.18
11On the first argument, the question of the constitutional validity of
the income tax was reserved, due to an equally divided court, Mr. Justice
H. E. Jackson being ill. Pollock v. Farmers' Loan if Trust Co., 157 U. S.
429, 586. On rehearing, even though Justice Jackson voted in favor of
the validity of the statute, it was invalidated. Pollock v. Farmers' Loan &
Trust Co., 158 U. S. 601. One judge, very plainly, changed his mind; his
identity has never been established.
12E.g., United States v. Grimaud, affirmed by equally divided court,
216 U. S. 614; on rehearing, unanimously reversed, 220 U. S. 506. See
Frankfurter and Landis, The Business of the Supreme Court (1928) 15-
16, note 43.
13 354 U.S. 1,65.
13aSee In re Fidelity Tube Corporation, 278 F. 2d 777 (C.A. 3), which
was argued three times before any opinion was handed down. The last
reargument (and, in all likelihood, the first reargument) were in banc.
14
E.g., Anderson Co. v. Trico Products Corp., 267 F. 2d 700 (C.A. 2);
Verbeeck v. Black Diamond Steamship Corp., 273 F. 2d 61 (C.A. 2).
 See also Klein v. United States, C.Cls., Jan. 18, 1961, granting a
motion for reconsideration and ordering entry of judgment in favor of the
plaintiffs.
15E.g., Smith v. Flinn, 264 F. 2d 523 (C.A. 8); Cross v. Pasley, 270 F.
2d 88 (C.A. 8); cf. Forman v. United States, 259 F. 2d 128, 261 F. 2d
181, 264 F. 2d 955 (C.A. 9), affirmed, 361 U. S. 416.
Normally, then, the only petition for rehearing that is likely to succeed is
one that, in the language of the Eighth Circuit's Rule 15 (a), is restricted to
"directing the attention of the court to some controlling matter of law or fact
which a party claims was overlooked in deciding a case." Unless your
petition is thus limited, you are wasting your time and your client's
money.19

Section 146. Rehearings in banc in Courts of Appeals.

—In circuits that have five active circuit judges or more—and at present
that means all except the First and Fourth—losing a case by a divided vote
is not the end. Losing counsel may petition for a rehearing in banc.19"
This practice was first employed in the Third Circuit, and, being
challenged, was sustained by the Supreme Court in the Textile Mills case,20
decided in 1941. The 1948 revision of the Judicial Code formalized the
practice, and provided specifically for hearings in banc, by all the active
circuit judges of the circuit.21 When the Ninth Circuit struck from its files
as unauthorized an unsuccesful litigant's petition for a rehearing in banc, the
Supreme Court in the Western Pacific Railroad Case 22 reversed, pointing
out, however, that whether a rehearing in banc should be granted could be
determined either by the original panel or by the entire court. The practice
accordingly differs from circuit to circuit,23 but parties are clearly free to
request in banc rehearings. Indeed, the Supreme Court has recently
indicated that, where an intra-circuit conflict exists, such a conflict must be
resolved by an in banc hearing, and can not be submitted to the Supreme
Court for decision by means of a certificate.24 (In the Federal judicial
system, as in the Federal military system, the buck never passes up.)
 16
E.g., Great Northern Railway Co. v. Hyde, 241 F. 2d 707 (C.A. 8);
Needleman v. United States, 261 F. 2d 803 (C.A. 5) ; cf. King v.
Waterman Steamship Corp., 272 F. 2d 823 (C.A. 3).
See also, for a late case, Manning v. United States, 280 F. 2d 422 (C.A.
5).
17E.g.,
McGehee v. Commissioner, 260 F. 2d 818 (C.A. 5) (statute);
United States v. Gibson, 225 F. 2d 807 (C.A. 9) (regulation).
18Cummings v. Redeeriaktieb Transatlantic, 242 F. 2d 275 (C.A. 3).
See also United States v. New York, New Haven & Hartford R. Co., 276
F. 2d 525 (C.A. 2), where a suggestion of lack of jurisdiction was fully
considered on a second petition for rehearing.
19
For another excellent statement, see United States v. Procter &
Gamble Co., 19 F.R.D. 247, 248-249, note 1 (D.N.J.), quoting a District
Court rule that similarly formulates the proper nature of reargument.
19aI follow the statute, cited below, in rendering this as "in banc"
without italics. Actually, since the expression is of great antiquity, from
the days of Law French, the correct form is "en banc," and hence
preferably italicized. Would that the only deficiency of the Revisers of
Title 28 had been their ignorance of philology!
20 Textile Mills Corp. v. Commissioner, 314 U. S. 326.
2128 U.S.C. § 46 (c). Note that hearings in banc in District Courts
have long been authorized. FCF Film Corp. v. Gourley, 240 F. 2d 711,
714 (C.A. 3); see Kovrak v. Ginsburg, 177 F. Supp. 614 (E.D. Pa.).
Inasmuch as a rehearing in banc augments the tribunal hearing the cause,
it has frequently happened that the court in banc reaches a result just the
opposite of that reached by the panel.25 For, not only will a rehearing in
banc add from two to six additional circuit judges to the original bench,
depending on the number in the circuit, but, inasmuch as such a reharing is
limited by the statute to "all the active circuit judges of the circuit," 26 it will
frequently exclude two of the original panel,27 and may of course exclude
all three, in view of the great statutory flexibility for the composition of a
Court of Appeals.28
 22 345 U. S. 247.
23 See Second Circuit, Rule 25 (b); Maris, Hearing and Rehearing
Cases in Banc, 14 F.R.D. 91 (practice in Third Circuit) ; National Latex
Products Co. v. Sun Rubber Co., 276 F. 2d 167 (C.A. 6) (practice in
Sixth Circuit); Stephens, "In Banc Hearings and Rehearings," in Shop
Talk Concerning the Business of the Court, 20 J. Bar Assn. of the D. C.
103, 105-109 (practice in District of Columbia Circuit); compare
Cafeteria & Restaurant Workers Union v. McElroy, 284 F. 2d 173 (D. C.
Cir., 14 Apr. 1960), certiorari granted, 364 U. S. 81 (same); United States
v. Gori, 282 F. 2d 43, 52-53 (C.A. 2) (practice in Second Circuit with
respect to whether there shall be new briefs or a reargument—or neither
—in connection with in banc consideration).
In view of the language of the statute, no rehearing in banc can be had
when the active circuit judges are equally divided. See Harmar Drive-In
Theatre v. Warner Bros. Pictures, 241 F. 2d 937 (C.A. 2); United States
v. United Steelworkers of America, 271 F. 2d 676, 694 (C.A. 3),
affirmed, 361 U. S. 39.
24 Wisniewski v. United States, 353 U. S. 901.
25 E.g., Howard v. United States, 232 F. 2d 274 (C.A. 5); G. H. Miller
ir Co. v. United States, 260 F. 2d 286 (C.A. 7); Reardon v. California
Tanker Co., 260 F. 2d 369 (C.A. 2); Noah v. Liberty Mutual Ins. Co., 267
F. 2d 218 (C.A. 5); Leary v. United States, 268 F. 2d 623 (C.A. 9).
Compare Sperry Rand Corp. v. Bell Telephone Laboratories, 272 F. 2d
29 (C.A. 2) (different result as a matter of law, same result in exercise of
discretion) .
See also Strand v. Schmittroth, 233 F. 2d 598 (C.A. 9) (May 3, 1956),
rehearing denied, 235 F. 2d 756 (Aug. 2, 1956), different result after
rehearing in banc, 251 F. 2d 590 (June 24, 1957). On September 18,
1956, in the interval between the last two decisions, Strand filed a
petition for certiorari in the Supreme Court (No. 432, Oct. T. 1956).
After the last decision, on December 3, 1957, his motion to dismiss the
petition was granted. 355 U. S. 886 (No. 22, Oct. T. 1957). I am not
aware of any other instance where a Court of Appeals reversed itself
 during the pendency of a petition for certiorari to review its earlier
decision.
One point long remained open: Suppose one of the active circuit judges
hearing the case retires prior to decision; may he participate? In a case
where the judge who retired cast the deciding vote, United States v.
American-Foreign S. S. Co./9 the Supreme Court, held, only recently, that
the act of retirement pending decision terminated his eligibility to
participate in the ultimate disposition of the cause.
26 28 U.S.C. § 46 (c).
27 E.g., Reardon v. California Tankers Co., 260 F. 2d 369 (C.A. 2)
(two retired circuit judges on original panel) ; Herzog v. United States,
226 F. 2d 561, 235 F. 2d 664 (C.A. 9), certiorari denied, 352 U. S. 844
(district judge and retired circuit judge on original panel).
28In addition to "the active circuit judges of the circuit," the following
may sit as members of a Court of Appeals:
(a) The Circuit Justice; see 28 U.S.C. § 43 (b); for a recent example,
see Lago Oil ir Transport Co. v. United States, 218 F. 2d 631 (C.A. 2)
(Mr. Justice Frankfurter).
(b) A retired Justice of the Supreme Court; see 28 U.S.C. § 294 (a); for
recent example, see Lord v. Lencshire House, Ltd., 272 F. 2d 557 (D. C.
Cir.) (Mr. Justice Burton).
(c) A retired circuit judge from the same circuit; 28 U.S.C. § 294 (c);
examples are legion.
(d) An active circuit judge from another circuit; 28 U.S.C. § 291 (a);
many examples.
(e) A retired circuit judge from another circuit; 28 U.S.C. § 294 (c);
see Presser Royalty Co. v. Chase Manhattan Bank, 272 F. 2d 838 (C.A.
2) (Judge Magruder, Senior Judge, C.A. 1).
(f) A judge of the Court of Claims; 28 U.S.C. § 293 (a); see, e.g.,
Anderson Co. v. Trico Products Corp., 267 F. 2d 700 (C.A. 2) (Judge
Madden).
 (g) A judge of the Court of Customs and Patent Appeals; see 28
U.S.C. § 293 (a).
(h) A district judge from the same circuit; 28 U.S.C. § 292 (a) ; daily
examples.
(i) A district judge from another circuit; 28 U.S.C. § 292 (c); e.g.,
National Latex Products Co. v. Sun Rubber Co., 274 F. 2d 224, rehearing
denied, 276 F. 2d 167 (C.A. 6) (Judge Mathes, District Judge, S.D.
Calif.).
(j) A retired district judge from the same or any other circuit; see 28
U.S.C. § 294 (c).
29363 U. S. 685. In the Herzog case, supra note 27, two of the judges
who heard the reargument in banc retired pending decision and then
participated therein; but their votes would not have changed the result.
Section 147. Practical details in connection with petitions for
rehearing in Courts of Appeals.
—While, as has been indicated, the normal petition for rehearing in a
Court of Appeals gets fairly short shrift, it does have one undeniable virtue,
namely, that the time for certiorari runs, not from the date of the original
opinion, but from the date of denial of rehearing.30 (There are refinements
in respect of motions for modification of the judgment and second petitions
for rehearing,31 but the general rule is unquestioned.) Consequently, the
filing of a petition for rehearing extends the time for your client to raise
additional funds for the next appellate step, and may increase the possibility
that some other circuit will rule the other way and so produce a conflict. But
these apparent advantages frequently collide with the requirement, imposed
by the rules of most courts, that every petition for rehearing must have
appended thereto a certificate of counsel that it is filed in good faith and not
for purposes of delay.32
It has already been noted that in the Eighth Circuit a petition for
rehearing is restricted to "directing the attention of the court to some
controlling matter of law or fact which a party claims was overlooked in
deciding a case." The limitation in the Court of Customs and Patent
Appeals is to "points supposed to have been overlooked or misapprehended
by the court."33 (Whether that formulation is really a limitation may well be
doubted; every petition for rehearing urges, indeed screams, that the opinion
just filed is full of misapprehensions.) At any rate, three courts—the
Second, Eighth, and Tenth circuits—impose costs for vexatious petitions for
rehearings.34
Since this is not a practice manual, there is no occasion in these pages to
discuss stay of mandate, supersedeas, or bail pending appeal,35 nor to warn
counsel that failure to make timely substitution of public officers will make
the cause abate.36
30See Robertson and Kirkham, Jurisdiction of the Supreme Court of
the United States (Kurland & Wolfson ed. 1951) § 414 (which
incorporates by reference § 384).
31
See Stern and Gressman, Supreme Court Practice (2d ed. 1954) ch.
V (A), pp. 163-166, and see particularly Federal Trade Comm. v.
MinneapolisHoneywell Co., 344 U. S. 206.
32First Circuit, Rule 31; Second Circuit, Rule 25 (a); Third Circuit,
Rule 33; Fourth Circuit, Rule 19; Fifth Circuit, Rule 29; Sixth Circuit,
Rule 22 (2); Eighth Circuit, Rule 15 (a); Ninth Circuit, Rule 23; Tenth
Circuit, Rule 24 (2); District of Columbia Circuit, Rule 26 (a).
33 Rule VII.
34Second Circuit, Rule 25 (d); Eighth Circuit, Rule 15 (d); Tenth
Circuit, Rule 24 (3).
Suppose, however, that you are winning counsel, relaxing in your office
while savoring the eternal verities and soothing nuances of the opinion in
your favor: Is there anything you should or can do when the opposition,
ignorantly refusing to stay licked, files a petition for rehearing? Four
circuits do not permit the filing of a response to a petition for rehearing,37
two plus the Court of Customs and Patent Appeals specifically allow a
response,38 and the rules of the others are silent. In practice, two circuits
will ask for a response if they are troubled by the petition.39
The soundest advice in this situation is, Sit Tight. You will have ample
opportunity to say your say if and when you are called on for a response, or
if and when your opponent seeks certiorari. Until then, there is nothing to
be gained, financially or spiritually, in rearguing a case you have already
won.

Section 148. Rehearings in the Supreme Court of the United

States.
—How to discourage the unmeritorious petition for rehearing that is filed
as a matter of course, and yet to leave the door slightly ajar for that rare
instance in which a rehearing should be granted, may well be an insoluble
problem. Certainly the Supreme Court's short-lived effort to stem the tide
by reducing from 25 to 15 days the time within which to petition for
rehearing was unsuccessful; 40 it was accordingly abandoned in the 1954
Rules.41 There is really only one way to discourage unmeritorious
applications for rehearing, and that is to deny them.
In the first five Terms since the 1954 Rules went into effect, about 970
petitions for rehearing were disposed of, and all but 15 were denied.42 Of
the 15 granted, only two—Reid v. Covert43 and Flora v. United States**—
followed opinions on the merits. It may be noted that, in the last 20 years,
only five rehearings have been granted following decisions on the merits.43
35 See Stern and Gressman, Supreme Court Practice (2d ed. 1954) ch.
V (H) and VI (H), pp. 207-217, 246-249. For a list of opinions of
Justices in chambers dealing with these matters, see my paper on
Opinions of Justices Sitting in Chambers, 49 Law Lib. J. 2 (1956).
36Snyder v. Buck, 340 U. S. 15; Klaw v. Schaffer, 357 U. S. 346;
Glanzman v. Schaffer, 357 U. S. 347.
37Second Circuit, Rule 25(a); Fourth Circuit, Rule 19; Sixth Circuit,
Rule 22 (3) ; Eighth Circuit, Rule 15 (c).
38 Seventh Circuit, Rule 25 (a); District of Columbia Circuit, Rule 26
(b); Court of Customs and Patent Appeals, Rule VII.
39The Second and Tenth, to my knowledge; but my experience in the
former on this point antedates the present version of its Rule 25.
 40 Amended Rule 33, 332 U. S. 857, 875; see 68 Harv. L. Rev. at 83-
84.
41 Rule 58(1) and (2).
Included in the 15 grants for the quinquennium were six rehearings of
affirmances by an equally divided court,46 although it should be noted that
rehearings have been denied even in that situation,47 and that in the Sioux
City Cemetery case 48 the grant of rehearing following such an affirmance
resulted in dismissal of the petition for certiorari.
Of the other rehearings granted, four were rehearings of earlier denials of
certiorari, granted because of intervening decisions; 49 one involved the
modification of the judgment earlier entered 50 (in all likelihood by
inadvertence, compare Section 37 (b), supra) ; while the remaining two
were reconsiderations of earlier denials of certiorari, in each instance again
denied when reconsidered.51
42 The overall figure includes motions to file a petition for rehearing,
i.e., petitions out of time, as well as petitions for rehearing filed as of
right. The basis for computation was the number of cases. I thumbed the
reports and so the final figure is not guaranteed; "E. & O. E.," as the
brokers say.
43 Rehearing granted, 352 U. S. 901, following opinions at 351 U. S.
470 and 351 U. S. 487.
44 Rehearing granted, 360 U. S. 922, following opinion at 357 U. S.
63.
45 Jones v. Opelika, rehearing granted, 318 U. S. 796, following
opinion at 316 U. S. 584; Elgin, J. ir E. R. Co. v. Burley, rehearing
granted, 326 U. S. 801, following opinion at 325 U. S. 711; Graver Mfg.
Co. v. Linde Co., rehearing granted, 337 U. S. 910, following opinion at
336 U. S. 271; Reid v. Covert, supra note 43; Flora v. United States,
supra note 44.
46 Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., rehearing granted,
349 U. S. 926, following affirmance at 349 U. S. 901; Indian Towing Co.
v. United States, rehearing granted, 349 U. S. 926, following affirmance
 at 349 U. S. 902; Thompson v. Coastal Oil Co., rehearing granted, 350 U.
S. 985, following affirmance at 350 U. S. 956; Bartkus v. Illinois,
rehearing granted, 356 U. S. 969, following affirmance at 355 U. S. 281;
Ladner v. United States, rehearing granted, 356 U. S. 969, following
affirmance at 355 U. S. 282; note 48, infra.
47E.g., Giese v. Chamberlin, affirmed by equally divided court, 342
U. S. 845, rehearing denied, 342 U. S. 879.
48
Rice v. Sioux City Cemetery, 349 U. S. 70, following affirmance at
348 U. S. 880.
49Remmer v. United States, 348 U. S. 904; Mitchell v. United States,
348 U. S. 905; Achilli v. United States, 352 U. S. 1023; Ohio Power Co.
v. United States, 353 U. S. 98.
50 Union Trust Co. v. Eastern Air Lines, 350 U. S. 962.
51McNally v. Teets, 352 U. S. 886; Massengale v. United States, 354
U. S.
In sum, a slim haul; and yet that is par for the course. In the earlier
edition of this work it was noted that, at the 1946 through 1948 Terms, the
Supreme Court granted 17 petitions for rehearing out of some 600 filed. All
except three involved cases considered either on petitions for certiorari or
on jurisdictional statements. Of the other three, one turned on an
intervening decision; a second was granted after affirmance by an equally
divided court and was then reaffirmed after reargument, still by an equally
divided court.52 In the third case, Graver Mfg. Co. v. Linde Co.,53 rehearing
was granted after opinion, but on rehearing the same result was reached.54
In this connection, of the five rehearings granted after opinion in the last
twenty years, the result in the end was different in only two cases.50

Section 149. Rehearings in the Supreme Court of the United

States; mechanics and doubtful areas.
—The Supreme Court, like some Courts of Appeals, does not permit
responses to a petition for rehearing except at its own request.56 When such
a request is made, the petitioner has every reason to be hopeful,57 but in at
least one recent instance rehearing was denied notwithstanding.58
Conversely, while Rule 58 (3) states that "No petition for rehearing will be
granted in the absence of such a request and an opportunity to submit a
reply in response thereto," this limitation has not been adhered to when
rehearing is sought following affirmance by an equally divided Court.59
It should be noted that, while the filing of a timely petition for rehearing
during the Term stays the mandate until disposition thereof, a separate
motion to stay the mandate is necessary if the petition for rehearing is filed
while the Court is in vacation.60 Finally, there is the vexed question of
rehearings out of time. Although Rule 58 (4) categorically states that
"Consecutive petitions for rehearings, and petitions for rehearing that are
out of time under this rule, will not be received," the mandate will be
recalled if in a suitable case it requires correction,61 and, as United States v.
Ohio Power Co.62 shows, Rule 58 (4) is not an absolute. The curious are
referred to the opinions in that case for a full discussion of the problem.
Assuredly, the result in Ohio Power will long serve to encourage the
persevering and to stimulate the ingenious.
52Marzani v. United States, 335 U. S. 895, 336 U. S. 910, 336 U. S.
922; see Effective Appellate Advocacy, Sec. 82.
53 336 U.S. 271.
54337 U. S. 910; 339 U. S. 605. For the successful petition for
rehearing in that case, see Chapter 16 of Effective Appellate Advocacy.
55(a) Jones v. Opelika, 316 U. S. 584; rehearing granted, 318 U. S.
796; different result, 319 U. S. 103.
(b) Reid v. Covert, 351 U. S. 487, and Kinsella v. Krueger, 351 U. S.
470; rehearing granted, 352 U. S. 901; different result and earlier
opinions withdrawn, 354 U. S. 1.
56 Rule 58 (3).
57Reid v. Covert, 352 U. S. 813; United States v. Ohio Power Co., 352
U. S. 987; Flora v. United States, 358 U. S. 871.
58Detroit v. Murray Corp., 356 U. S. 934 (response requested), 357 U.
S. 913 (rehearing denied).
 59E.g., Ryan Stevedoring Co. v. Pan-Atlantic S. S. Corp., 349 U. S.
926; Indian Towing Co. v. United States, 349 U. S. 926.

Section 150. Effect of denial of rehearing.

—The old saw, that it is better to have loved and lost than never to have
loved at all, should not be applied to petitions for rehearing. A "rehearing
denied" will frequently weaken a good point when that point later becomes
critical.
First, no matter how strong a point may be, it will be far weaker if
presented in the last of a long series of requests for reconsideration, because
by then the usual judicial attitude recalls General Forrest's turn-down of the
lieutenant's renewed application for leave: "Dammit, I told you 'No' twicet!"
And, lest any reader deem that comment overly cynical, let him look at the
Rosenberg case.63
There, after six consecutive applications for review had been denied, it
was finally contended, on a seventh, that, since the petitioners had been
found guilty of a conspiracy alleged in the indictment to have continued
from 1944 to 1950, they were not properly sentenced to death by the judge
under the Espionage Act of 1917, but could only have been so sentenced
upon recommendation of the jury pursuant to the Atomic Energy Act of
1946. Now, whether or not that contention was correct, it would be hard to
urge that as an original proposition it was unsubstantial.64 But it was not
presented as an original proposition, it was first presented as a renewed,
warmed-over, and hence apparently unoriginal seventh proposition, and
under unusual circumstances that would have entailed substantial delay in
the final disposition of the case.65 In one of the opinions it was said that
"The stay which had been issued promised many more months of litigation
in a case which had otherwise run its full course." 66 In another it was said:
60 Rule 59 (2).
61 Cahill v. New York, N.H. <2r H. R. Co., 351 U. S. 183.
62 353 U. S. 98.
 63 Rosenberg v. United States, 346 U. S. 273. This opinion, filed after
the final ruling in the case, sets out in chronological order all of the
applications made on behalf of the petitioners.
64 See 346 U. S. at 301-310 (opinion of Frankfurter, J.).
Once the Court conceded, as it did, that the substantiality of the question
raised before Mr. Justice Douglas was the sole issue, it became wholly
immaterial how many other questions were raised and considered on their
merits in the District Court and in the Court of Appeals, or how many times
review was sought on these questions and refused by this Court. It was
equally immaterial how long a time intervened between the original trial of
this case and the present proceeding, and immaterial that this was a last-
minute effort almost on the eve of the executions. To allow such
irrelevancies to enter the mind not unnaturally tends to bend the judicial
judgment in a false direction.67
But—the Court by 6-3 held the question unsubstantial, and the
Rosenbergs were executed.
Second, lower courts attach far more significance to the Supreme Court's
"rehearing denied" than the intrinsic significance of that action probably
justifies. Lower courts normally look upon a denial of rehearing as a solemn
adjudication on the merits.
Take I ekes v. Fox:68 Water-right owners on a federal irrigation project in
Washington State brought suit in the District of Columbia to enjoin the
Secretary of the Interior from curtailing their supply of water. The defense
was that, since the United States owned the water, the proceeding was a suit
against the United States, which had not consented to be sued. The District
Court granted a motion to dismiss, a divided Court of Appeals reversed, and
on certiorari the Supreme Court held adversely to the Secretary. A petition
for rehearing was then filed, only to be denied with a slight change in the
opinion;69 and the case went to trial.
65 The stay which the full Court set aside was entered after
adjournment for the summer, and was made on the application of a
stranger to the cause. As to the latter point, see 346 U. S. at 291-292
(opinion of Jackson, J.).
 66 346 U. S. at 287, per Vinson, C. J.
67 346 U. S. at 302, per Frankfurter, J. us 300 U. S. 82.
69 300 U. S. 640.
Trial resulted in a judgment adverse to the water-right owners, who
appealed; the Court of Appeals reversed on the basis of what the Solicitor
General had urged in his petition for rehearing six years earlier:
A petition for rehearing filed in the Supreme Court by the Solicitor
General makes it apparent that the principal issue in this case was before the
Supreme Court on the former appeal. In that petition for rehearing the
Solicitor General pointed out to the Court that the decision would lead to
serious consequences in the administration of the Reclamation Fund
because it gave applicants, on the sole basis of prior deliveries of water, a
vested right in a larger amount of water than was stipulated in their
contracts. The petition for rehearing pointed out that this amounted to
giving them a prescriptive right based on permissive use. The petition also
relied on a Washington statute which gave the government the right to
appropriate water. We can see no difference between the appellee's position
here and his unsuccessful argument before the Supreme Court of the United
States.70
This second time the Secretary's petition for certiorari was denied.71
Let us review these cases: Suppose that, in Rosenberg, the question of the
legality of the death sentence had been raised after the first denial of
certiorari, without the complication of the other five applications that
intervened. I suggest that it is unrealistic to suppose that this new point
would not have received a more cordial reception had it been made on the
second time up rather than on the seventh. Moreover, if, in Ickes v. Fox, no
petition for rehearing had been filed, it would certainly have been more
difficult for the Court of Appeals to have reversed the judgment entered
after the trial.
I realize that the foregoing comments have the benefit of hindsight,
which of course is always 20-20 in each eye. None the less, I strongly urge
that, except in the most unusual circumstances, it is the part of wisdom not
to ask for a rehearing. It hardly ever helps, but it may do considerable harm.
When you're licked, take your shellacking like a little man, and comfort
yourself with the thought that you can't lose them all.

Section 151. Examples of successful petitions for rehearing.

— What, then, are the circumstances which alone justify a request for
rehearing? In Chapter XIII, infra pp. 422-442, there are set out in full the
text of two successful petitions for rehearing, one in a Court of Appeals, the
other in the Supreme Court. In that Chapter, also, I endeavor to explain why
those two petitions were filed, and why in my view the occasions for filing
them fell within the above expressed limitation of "most unusual
circumstances."
70 Fox v. Ickes, 137 F. 2d 70 (App. D. C.).
71 320 U. S. 792.
 CHAPTER XI

NEW COUNSEL ON APPEAL?

Section 152. Professional specialization in England and in the

United States.
—The English division of the legal profession into barristers and
solicitors, each with their respective areas of specialization, has long
withstood the test of time, and, so far as we can tell "when we contemplate
such a system from the outside," 1 the test of utility as well.
It would of course be vain to hope that in this country we might
somehow be persuaded to revert to the English system.2 However, because
of the increasing burdens cast on American lawyers by the mounting
complexity of the law, and by their clients' inexorable demands for
efficiency and expertise, there exists in this country a considerable degree
of specialization within the legal profession, chiefly in urban centers. It is
not too difficult, in a given community, to point out the lawyers who hardly
ever go to court and those who spend most of their time there. Moreover,
particularly in the larger cities, the institution of appellate counsel is
constantly gaining in importance.
No single lawyer today can hope to be well versed in every field of legal
endeavor that may face him in the course of his practice. Just as in medicine
one of the timeworn but timeless jokes concerns the universal expert, the
specialist in the skin and its contents, so in law: no one today can even
fairly claim to be even reasonably conversant with the entire corpus.
Similarly, no lawyer can hope to be expert in all techniques, so as to be able
to try a case before a jury or before a judge, or to brief and argue an appeal,
with equal facility and skill, and with full and knowledgeable grasp of all
the relevant—and different—techniques connected with each activity.
1 Diaz v. Gonzales, 261 U. S. 102, 106. For the heart of the quotation
in full, see note 39, Section 70, p. 218, above.
2
A strong argument to that effect is set forth in Chap. XIII of the late
Lloyd Paul Stryker's The Art of Advocacy (1954) 251-270, entitled
 "Barristers and Solicitors—A Plea for a Divided Bar."

Section 153. Appellate counsel specializes in being a generalise

—The increasing emergence of counsel for appeals reflects a recognition
and a growing awareness of the inescapable fact that effective appellate
presentation demands the services of a lawyer who is expert, not simply in
particular fields of substantive law, but in a particular technique. Otherwise
stated, the true appellate counsel specializes in being a generalist. Given a
record, properly prepared, he is ready to brief and argue any appeal.
Appellate counsel faces, in an appellate court, a different audience and a
different task than those faced in the trial court. It is undoubtedly safe to
conclude that appellate counsel who specialize in subtly invoking the
predilections of judges of courts of last resort will as a general rule fail to
sway with equal success the popular prejudices of jurymen—and
jurywomen. By the same token, a top-notch lawyer before a jury may do
rather less than well when arguing an appeal.3 In this connection, I have
vividly in mind the comment of the Chief Justice of a State court of last
resort, made about an argument presented by counsel in a negligence case:
"He made the same jury speech three times—once to the jury at the trial,
once to the trial judge on motion for new trial, and the third time to us on
appeal."

Section 154. Can anyone argue an appeal?

—Yet, to a surprising degree, the view that anyone can argue an appeal is
still too prevalent. It certainly obtains among the many able jury lawyers
who are rather less than able before an appellate bench, and yet insist on
arguing there as well. Curiously enough, the same view also obtains even
among the lawyers who are quick to retain specialized trial counsel but
would not dream of consulting, much less retaining, specialized appellate
counsel. And that view constitutes the inarticulate major premise of every
lawyer, high in the hierarchy of his law firm, corporation law department, or
government law office, who considers that his position alone supremely
qualifies only him to present cases to appellate tribunals.
 Indeed, it is fair to say that it is just this view—that anyone can argue an
appeal—which is largely responsible for the generally mediocre level of
appellate arguments. Three decades ago, Charles Evans Hughes wrote:
3"The advocate, who sweeps the jury off their feet with his torrential
eloquence, is rarely able to adapt his style to the colder and more judicial
atmosphere of the Appeal Courts." Walker-Smith, Lord Reading and His
Cases (1934) 41-42.
The progress of civilization is but little reflected in the processes of
argumentation and a vast amount of time is unavoidably wasted in the
Supreme Court in listening to futile discussion; this has the effect of
reducing the time for cases which should be fully presented.4
If any reader thinks that there has been an improvement in the quality of
argumentation in the thirty-three years that have passed since the above was
written, let him just sit in the Supreme Court chamber and listen to as few
as three consecutive arguments. (If it is inconvenient for him to come to
Washington, he can make the same discovery in any courtroom occupied by
a United States Court of Appeals.)

Section 155. Appellate argument requires specialization in

technique.
—The fact of the matter is that appellate argument calls for specialization
in technique quite as much as does the trial of a case. As a distinguished
member of an eminent State court of last resort recently said, "Nor is the
argument of an appeal any less an art, any less a job for the skilled
professional, than the conduct of the trial itself." 5 Like the trial lawyer, the
appellate lawyer is a specialist in technique rather than in mere subject-
matter. He is a generalist who presents his case to a bench of generalists, a
bench that is frequently not as versed in the details of the specialty that the
particular appeal involves. The specialist who prepared and tried the case is
frequently so steeped in the specialty and in all of its assumptions that he
finds it difficult to present the details of his controversy to listeners not
similarly acquainted with that specialty. The generalist is better able to sort
out the significant issues, to bring analogies to bear from related fields, and
to evaluate the contentions of the specialist just as the non-specialists on the
court are likely to do.
Otherwise stated, the appellate generalist will thus be able to minimize
arguments that lack appeal to a non-specialist audience, and, by parity of
reasoning, to emphasize contentions that will have greater impact on that
audience.
Moreover, quite apart from the differences in technique that stem
basically from the character of the respective tribunals, quite apart also
from the comparative emphases on specialization versus generalization, the
most vital and significant point is that experience teaches it is better,
regardless of the talents of the individual concerned, to entrust the appeal to
a lawyer other than the one who tried the case.
4 Hughes, The Supreme Court of the United States (1928) 61.
5People v. Breslin, 4 N. Y. 2d 73, 80, 81, 149 N.E. 2d 85, 89, 90, per
Fuld, J.

Section 156. Appellate specialization in the United States

Department of Justice.
—In that connection, let us see how the largest and busiest litigant in the
land—the United States itself— conducts its appellate business.
At headquarters—which is to say, in the Department of Justice in
Washington—all Supreme Court matters are under the direct charge of the
Solicitor General. He has a small immediate staff that reviews and revises
the draft briefs prepared by the several functional divisions of the
Department—Criminal, Civil, Tax, Lands, etc. The Solicitor General
decides who will argue the cases that are to be heard on the merits. And he
makes the decision for or against appeal in every Government case that is
lost below, at every level and in every court.
Only on rarest occasions does a Government lawyer who tried the case or
argued it in the Court of Appeals have any significant part in its Supreme
Court posture. Probably less than five cases in ten years are thus handled.6
Per contra, the lawyers who have the responsibility for Supreme Court
briefs and, preeminently, Supreme Court arguments, have had contact with
the case below even more rarely.
This division of labor is not due to any prima donna attitude, nor does it
reflect the view that a lawyer on the fifth floor of the building is necessarily
and inescapably superior in talent to one whose office is on a lower floor.
Rather, it represents the recognition of long experience that a lawyer versed
in appeals and therefore able to weigh appellate considerations is better
qualified to evaluate cases, particularly where they will be disposed of by a
single ultimate tribunal. It is for this reason that the Solicitor General passes
on all appeals from District Courts to Courts of Appeals. The United States
Attorney may feel, frequently with reason, that "We wuz robbed." But the
case may be a poor one to serve as a test; although it can, in all likelihood,
be won on appeal, it may have overtones that will make it unappealing or
undesirable as a vehicle on certiorari later on; those are considerations that
the Solicitor General, with his finger constantly on the pulse of Supreme
Court trends, can better appreciate and hence better evaluate. In short, the
United States Government, in its appellate work, employs virtually
independent appellate counsel.
6The only ones that occur to me at the moment—there may well have
been more—are Fisher v. United States, 328 U. S. 463, argued by
Charles B. Murray, Esq., then an Assistant U. S. Attorney for the District
of Columbia, and Government counsel in the Court of Appeals, see 149
F. 2d 28; Dennis v. United States, 341 U. S. 494, argued in part by Irving
S. Shapiro, Esq., Special Assistant to the Attorney General, who had
participated in the Court of Appeals argument, see 183 F. 2d 301, and
had moreover been one of trial counsel; United States v. Fruehauf, 365
U. S. 146, argued on Jan. 11, 1961, by S. Hazard Gillespie, Jr., Esq.,
United States Attorney for the Southern District of New York; and
Greenberg v. United States, 343 U. S. 918, argued by Max H.
Goldschein, Esq., Special Assistant to the Attorney General, who had
twice argued the case in the Court of Appeals, see 187 F. 2d 35 and 192
F. 2d 201, and had also been trial counsel. In connection with the last
case, see Chapter XIV, below.
Interestingly enough, lawyers who enter the Department with doubts
about this practice become converted after they have seen it in operation.
The following is from a letter by former Assistant Attorney General Rice,
then in charge of the Tax Division, who commented on this chapter when it
first appeared in a legal periodical:
As you know, we have long had separate Trial and Appellate Sections in
this Division. I was not accustomed to this division of functions when I
came here for, although I came from a large New York City firm, the
practice there was generally to have the lawyer who tried the case argue the
appeal. I am convinced, however, from close association with the work
here, that there is merit in the separation of responsibilities, mainly for the
reason that the effective trial lawyer is all too often not an effective
appellate pleader and vice versa. I think there are times when the appellate
lawyer, working from a cold record, loses some of the color of the case or
tends to isolate issues without sufficient emphasis on the whole factual
picture. By and large, however, I believe that the separation of functions is
clearly advisable in any activity having volume litigation.7

Section 157. Appellate specialization in United States

Attorneys' offices.
—The same trend is evident in the larger United States Attorneys' offices.
In the smaller offices that are located in districts where the work-load is
fairly light, the Assistant United States Attorney who tried the
Government's case will be expected to handle the case on appeal. However,
in the busier districts— and those include the large centers of population—
successive United States Attorneys have found that they obtain better
results by setting up an appellate bureau or section, whose members brief
and argue on appeal the cases that their colleagues from the civil and
criminal sections have tried.
7 Letter from the Hon. Charles K. Rice, July 30, 1959.
This division of function, however desirable or useful, is not rigid. By
and large, however, it has been found to be helpful. Assistant United States
Attorneys who specialize in appeals find they enjoy greater ease in
participating in colloquies with the appellate judges than those of their
associates who appear only occasionally in the Court of Appeals. Similarly,
the appellate specialists find it less difficult to meet effectively issues that
concern and disturb that court. And, preeminently in criminal cases,
whenever an appellant complains of the conduct of the prosecution, it
conduces to a more objective argument if that conduct is defended by an
Assistant United States Attorney who did not participate in the trial.
The Hon. Oliver Gasch, then United States Attorney for the District of
Columbia, kindly furnished a memorandum articulating his reasons for
establishing an Appellate Section in his office; it warrants quotation in full:
It has been my experience as United States Attorney for the District of
Columbia that it is most necessary and desirable to establish and maintain
an Appellate Section in this office. Annually, for the past several years, we
have been responsible for processing around 300 appeals. The large
majority of these appellate cases are in the United States Court of Appeals
for the District of Columbia Circuit. Approximately 60% of them are
criminal cases which in this unique federal district run the gamut from
ordinary common law offenses to prosecutions based on general federal
criminal statutes. On the civil side there is also great diversity in the subject
matter of these cases. Most of them involve efforts to enjoin the action of
the heads of the Executive Branch of our Government. Quite a few Federal
Tort Claims cases reach the appellate stage.
Assistant United States Attorneys, who by reason of their training,
experience, and scholarly inclinations are assigned to the Appellate
Division of the office, have demonstrated that they can most effectively
represent the Government at this level. Our trial men carry a heavy load of
trial cases. Most of them are in court in connection with trial matters each
day. To expect them to brief and argue appellate matters in addition to
assuming their trial obligations would, in my judgment, be expecting the
impossible. This year, however, we have determined to have each trial man
argue at least one appeal. Our reason for doing this is that it seems desirable
to have trial men experience some of the difficulties encountered at the
appellate level. I think it will cause them to be more concerned about the
problem of making a good record.
Generally, however, the objective approach of the appellate advocate is
more effective and more efficient. Appellate specialists are more familiar
with the appellate rules, procedures, and the many applicable precedents in
the appellate courts. Their presentation is more direct and less time
consuming. Their ability to answer effectively the questions propounded
during oral argument often spells the difference between sustaining one's
position and being reversed.

Section 158. Appellate specialization in a large public law

office.
—The same differentiation between trial and appellate lawyers was
similarly found desirable in one of the busiest public law offices in the
world, that of the Corporation Counsel of the City of New York. Some
years ago, Judge Paxton Blair, who for about a decade was Chief of the
Division of Appeals in that office (and who is now Solicitor General of the
State of New York), wrote as follows:
I have always held that the trial man is not the best man to handle the
appeal, but may even be the worst. * * * In the office of the District
Attorney, New York County, a case taken to an appellate court is handed
over to what is known as the appeals division or appeals bureau, and briefed
and argued by an appeals specialist.
There are, to my mind, overwhelming advantages in this method of
handling appeals. The appeals specialist views the case precisely as does
the appellate court, through the little square window of the record, so to
speak, and not as something viewed from the great outdoors. The trial man's
mind cannot free itself of matters which entered in during preparation for
trial but which did not get into the record, either because a witness he
interviewed failed to respond to a subpoena or was not allowed to testify
because of failure to establish qualifications. Or if the witness did testify,
some important facts may not have been established because objections to
questions were sustained.
Then, too, the style of oratory a trial man develops, through his constant
appeal to a jury less learned than himself, is out of place in an appellate
court. A calm, conversational style is there appropriate; and his hearers'
learning exceeds his own, or at least he should conduct himself as though it
did.8
Because of the work load, Judge Blair found it necessary to assign many
appeals to the functional divisions of the Corporation Counsel's Office,
where the litigation had originated. "Statistics which I kept showed that the
men of the appeals division had almost twice as high a batting average as
their brethren from other divisions." 9

Section 159. Appellate specialization in private law offices.

The larger law firms—frequently referred to as law factories (though only
by the outsiders) —are generally staffed with enough lawyers of broad
appellate experience to permit them to meet, with their own resources, a
problem that is essentially one of function and specialization. Yet even
there, as will be indicated below in Section 163, the question whether a
different lawyer within the office should handle the appellate phase of a
case raises problems identical with those faced by an office of moderate
size that is considering, in an important cause, the desirability or otherwise
of consulting or retaining new counsel on appeal.

Section 160. Advantages of new counsel on appeal.

—Apart from the ingrained differences between trial and appellate
techniques, and even in a case that does not involve a detailed,
selfcontained, or esoteric specialty, appellate counsel is frequently able to
bring new ideas and a freshness of approach into a case that has already run
a long course. No matter how able or talented a particular lawyer may be,
after the same individual has prepared a case, presented it to a trial court,
and then briefed and argued it on appeal, he will be pretty stale in his
thinking if a second briefing and a second argument at another level are
required on top of that. Injection of new appellate counsel at that stage is
not in any sense a reflection on original counsel; it is a recognition, among
other considerations, of the fact that repetition makes for dullness and that a
fresh mind may well be able to introduce a new and hence a more effective
approach to what has become rather more than a twice-told tale.
8 Blair, Appellate Briefs and Advocacy, 18 Ford. L. Rev. 30, 46-47.
9 Id., note 38, 18 Ford. L. Rev. at 47.
Indeed, even experienced appellate lawyers who have lived rather too
long with a particular case are often eager to bring in a colleague for a fresh
viewpoint, or to consult with friends on a law faculty for the same reason.
 The foregoing considerations are particularly pertinent in connection
with Federal litigation. Thus, a case before a regulatory agency starts before
the trial examiner, goes to the commission or board, then is reviewed by a
Court of Appeals (or a threejudge District Court), then is sought to be
reviewed by the Supreme Court on petition for certiorari or jurisdictional
statement, and, if review is granted, is finally presented on the merits. And
that is the usual, not the unusual, travel of such a controversy, and of many
others, as, for instance, civil tax cases. Very, very few lawyers can avoid the
dullness, the warmed-over undertones, the effect of stale-sounding canned
reasoning that inevitably accompany such a reiteration of arguments.

Section 161. New appellate counsel in the Supreme Court of the

United States.
—Finally, if the appeal in question—whether the first, or the second, or
even the fourth—is taken to a court with whose reactions and current
tendencies original counsel is unacquainted, it is generally advisable to
retain appellate counsel who is. It is this principle that underlies the
centralization of the Government's Supreme Court litigation in the Solicitor
General's office. And, even more than in briefs and arguments on the
merits, the one-shot written argument made in a petition for certiorari or a
jurisdictional statement on appeal requires an intimate knowledge of the
Supreme Court's standards for review.
On this subject, a decade's additional experience leads me only to repeat
what I wrote in 1950:
I might make the following additional observation about Petitions for
Certiorari and similar briefs seeking discretionary review, namely, that they
constitute, certainly for the uninitiated, the most difficult form of written
argumentation: They must persuade a court, not so much that the ruling
below was wrong, but that it warrants review. This view is confirmed,
substantially without dissent, by most of my former colleagues in the
Department of Justice who deal with Supreme Court briefs, and by my own
experience under controlled conditions, viz., returning to the law after
nearly five years' service in the Army: I felt able to write a brief on the
merits the day I reverted to civilian status, and in fact plunged right into the
process of writing one before that day was out; but it took me six months
more to get into the swing of composing an acceptable Petition for
Certiorari.10
The same considerations are of course equally applicable to the writing
of Jurisdictional Statements in cases on appeal.11

Section 162. Use of appellate counsel at the trial level.

— There is one other situation in which it may be helpful to retain
appellate counsel, namely, in the important case involving large sums or
large principles—and there the retainer should precede the appeal, while the
record can still be shaped with the appeal in mind.
This other situation is not that of the "Big Case" exclusively; by no
means. For bigness is relative, and the remarks that follow are not
addressed to the familiar if happily infrequent instance of the monster
antitrust litigation with its galaxy of talent,12 but to the far more usual and
indeed not uncommon case, whose facts can by and large be established
without too much difficulty, but whose essential problem is that of shaping
a record so as to sustain a carefully formulated proposition of law on appeal
—in this instance, on the inevitable appeal, which both sides are prepared to
take if the judgment is adverse to either.
Too often—far too often—appellate counsel is called in at the hospital
stage, when the case is in the last stages of terminal illness. Similarly, too
often appellate counsel finds that an essentially sound case has been
seriously weakened by careless handling that did not have the record on
appeal in mind.
I am not suggesting for a moment the second-guessing of trial counsel,
the hindsight as to that famous just-one-more-last-question on cross-
examination. As to these and similar unavoidable risks of a trial, appellate
counsel must take the record as Cromwell preferred his portrait—warts and
all. Compare Section 28, supra. But if, when the litigation starts, it is
obvious that there is a great deal at stake; that the case is certain to be
appealed, regardless of outcome; and that the ultimate result will turn on
questions of law, then the time for appellate counsel to assist is at the outset,
when he can consult with trial counsel and work with them with a view to
making up the record for the ultimate appeal.
 10 Effective Appellate Advocacy, pp. 241-242.
"See Stern and Gressman, Supreme Court Practice (2d ed. 1954) ch.
VI (F), pp. 233-246.
12 "The court judicially recognizes an array of talent seldom equalled
in history." United States v. E. I. du Pont de Nemours & Co., 13 F.R.D.
487, 489 (E.D. 111.) ; for the decision on the merits, see United States v.
du Pont if Co., 353 U. S. 586; for the final decree, see United States v. E.
I. du Pont de Nemours ir Co., 177 F. Supp. 1 (N.D. 111.), probable
jurisdiction noted, 362 U. S. 986.
Such work will include research on the law, not the onceover-lightly that
all too commonly precedes a trial, but extensive study of the uncharted
areas and the factors that may be expected to affect the appellate court in
those areas. Before the trial, these labors will also include the preparation of
trial briefs, and memoranda on the admissibility of disputed but highly
material evidence. During the trial, appellate counsel will advise on the
making or withholding of objections and on offers of evidence that will
adequately safeguard the client's legal position before the appellate court.
Thus appellate counsel assists in shaping the record that he will later
defend, and in addition avoids what is so fruitless for the client, the brilliant
trial victory doomed to reversal on appeal because of errors in the record.
Here also, the foregoing suggestions have been found helpful in
important cases. Once more to quote from Assistant Attorney General
Rice's letter,
I was particularly interested in your remarks as to the use of appellate
counsel at the trial stage. You may be interested to know that in a recent,
well publicized criminal case, we assigned a lawyer from our Appellate
Section to work with the trial lawyers at the outset of the case for the very
reasons outlined in your article. This case is now on appeal and we believe
that we will derive substantial advantages from the participation of the
appellate lawyer at the trial level. As far as I know, this is the first time we
have done this and, in view of our manpower shortage, we could not do it
often. But if the experiment proves as successful as we hope it will (we feel
that we have already received definite benefits at the trial stage), it may be
worth repeating in other important cases, particularly where it is evident
from the beginning that significant questions of law are present in the
case.13

Section 163. Considerations underlying retainer of new

appellate counsel.
—Of course, the run-of-the-mill lawsuit will not support such an
elaborate and—necessarily—expensive apparatus. In many, many cases, all
too plainly, what is involved will barely yield a reasonable fee to a single
lawyer. But in a substantial zone of cases on appeal, the question whether to
retain new appellate counsel necessarily arises.
Note 7, supra.
First, should someone else be retained at all? That question includes the
subsidiary inquiry, in the large law firm of diverse talents, whether a
different partner should be entrusted with the appeal, regardless of his
personal relationship either to the client or to the subject-matter of the
controversy. The entire problem is one that must be carefully pondered, not
only in the light of the considerations already outlined above, but also in its
bearing on the very heart of the attorney-client relationship. For, if the client
can afford first-rate professional assistance at the appellate level, and his
trial counsel who lacks appellate experience insists on arguing the case—
either on the basis that "This is the first time I have ever had a case in the
Supreme Court, and I don't intend to lose that opportunity," or else on the
view that "I have fought this all the way and so I propose to see it
through"—there is a genuine conflict between the interests of the client and
the interests of the lawyer.
Second, if it is decided to retain someone else, who? The "big name"
lawyer who will not read the record? Or the lawyer who is somehow
supposed "to have the ear of the court"? Both are equally without utility.
One Justice of the Supreme Court wrote in an opinion, "Intrinsic
professional competence alone matters. The name or fame of counsel plays
no part whatever in the attention paid to argument, and is wholly irrelevant
to the outcome of a case." 14 Another declared in a published lecture that "it
is a grave mistake to choose counsel for some supposed influence or the
enchantment of political reputation, and, above all, avoid the lawyer who
thinks he is so impressively eminent that he need give no time to
preparation except while he is on a plane going to Washington. Believe me
when I say that what impresses the Court is a lawyer's argument, not his
eminence." 15
Third, if it is determined to proceed with the lawyers already in the case,
is there any advantage to seniority unrelated to professional competence? In
other words, does the very real importance of a case mean that it cannot be
entrusted to anyone junior to the senior partner, or the general counsel, or
the assistant attorney general?
14 Dennis v. United States, 340 U. S. 887, per Frankfurter, J.
15 Jackson, Advocacy Before the Supreme Court: Suggestions for
Effective Case Presentations, 37 A.B.A.J. 801, 802.
Here again, a proper answer turns on function and specialization. The
person best qualified to conduct an orchestra is not necessarily the most
competent soloist; and the talents—or the accidents—that make X the
appropriate and indeed logical choice to head a law firm or a government
law bureau may be entirely irrelevant to technical appellate competence.
Conversely, the ablest advocate may be quite unable to direct or administer
even a small group of lawyers or to formulate policies that reach beyond
litigation tactics or strategy.
Whatever may be the case as to appellate briefs, where cooperative effort
is always helpful, appellate argument is necessarily a solo performance. If
counsel is unprepared, if counsel lacks a firm grasp of the controlling
issues, if counsel becomes flustered to the point of sputtering silence by
questions from the bench, then the little slips his associates hand him—the
only help anyone can offer at that juncture—will not rehabilitate either him
or his argument. See Section 113, supra. In today's complex society, there is
wide scope for the talents of the organization man, but appellate argument
is not his pigeon; the man on his feet arguing an appeal must be a self-
contained individualist.
If the bar gave as much consideration to the selection of appellate
counsel as is now generally given to the selection of trial counsel, there
would be fewer arguments in appellate courts by lawyers whose talents lie
in other directions, and hence far less "not good" arguments than are now
heard. The cynical comment that "Many a rich client has a poor lawyer"
was uttered by a distinguished appellate judge, since deceased. Considering
what is at stake when cases are on appeal, it is indeed surprising why there
has not been universal acceptance of the obvious criterion for selecting
counsel on appeal, namely, that "Intrinsic professional competence alone
matters."

Section 164. Should new appellate counsel be selected on the

strength of his percentage of victories?
—A baseball manager will —and should—select pitchers on the strength
of their won and lost records, other players on the basis of batting averages.
But an appellate lawyer's percentage of wins is apt to be irrelevant in any
consideration of his qualities.
I once knew a Solicitor General of the United States—not, be it noted,
one of the ablest incumbents of the position—who was inordinately proud
of his percentage of cases won. But his pride was doubly misplaced. First,
the volume of litigation in that Office is such, and the winning cases
generally so obvious, that anyone with the right to pick his own vehicles for
argument is well nigh certain, quite regardless of his qualities or lack of
them, to win at least nine out of ten. Second, this gentleman in fact lost a
number of cases that might well have gone the other way, and that
advocates more generously endowed with forensic talent in all likelihood
would have won.
Moreover, when we consider private litigation, it is at once apparent that
the lawyer with a case that will probably be won is not going to retain an
appellate specialist; those lads will be retained only in the difficult matters,
the uphill fights and the forlorn hopes, areas in which batting averages
necessarily tend to be low.
Here is a wry comment on that point from Professor Samuel Williston's
delightful autobiography:
I may add in reference to the frequency with which my aid was
unavailing to lawyers who sought my assistance, that it was not generally
sought unless the case was one of some desperation. In cases that are easily
won, lawyers generally prefer to keep the labor and the compensation
entirely to themselves.16
To the same effect is a passage from Augustus Garland's musings, written
after he had argued over 130 cases in the Supreme Court: 17
In casting up the account of loss and gain in the foregoing list, the
balance is rather against me: I have lost more than I gained. * * *
Upon one occasion, on opinion day, the tide ran so heavily against me,
losing about five cases and gaining not one, I was quite ill at ease and
moody. Coming out of the court, I got in with Judge Harlan 18 and passing
the civilities of the day, he asked me how I felt and I told him quite badly,
and the reason for it, and that I did not believe I could even get an attorney
enrolled in that court any more, and recalled to him my fate on that day. He
chided me somewhat, and remarked it was not unusual with the very best
lawyers, and told me of his observation here and elsewhere that bad or
difficult cases fell to the lot of good lawyers, and they were sought for to
deal with just such cases.19
16 Williston, Life and Law (1940) 287.
17
Appropriately enough, he was stricken on January 26, 1899, while
arguing Towson v. Moore, 173 U. S. 17, in the Supreme Court, and died
in the Clerk's office the same day. See 172 U. S. 651; 43 L. ed. 598, note;
J. Sup. Ct., Oct. T. 1898, pp. 101-102. He was also the protagonist of Ex
parte Garland, 4 Wall. 333.
18 The elder.
It will be appropriate, by way of summary, to conclude with a short
sentence from the pen of one who was first an outstanding advocate, and
then a great judge, the late Mr. Justice Jackson:
A lawyer's stock in trade is not merely that he always wins his cases, but
that he puts up a good fight.20
19 Garland, Experience in the U. S. Supreme Court (1898) 91-92.
20 Gerhart, America's Advocate: Robert H. Jackson (1958) 44.
FIFTH PART
SOME ILLUSTRATIVE EXAMPLES
 CHAPTER XII

USE OF THE STATEMENT OF FACTS TO

ADVANCE ONE'S CASE: SUCCESSIVE
BRIEFS IN THE SAME LAWSUIT

Section 165. Comments on the two briefs included herein.

— Here are set forth the Statement portions of the briefs discussed in
Section 27, above, which illustrate how the Statement of Facts can advance,
or fail to advance, a lawyer's case, and which illustrate as well, see Section
79, above, the dangers inherent in the practice of excessive footnoting.
The first Statement of Facts is taken from the Brief in Opposition in Von
Moltke v. Gillies, certiorari granted, 331 U. S. 800, to review 161 F. 2d 113
(C.A. 6). Here the Government's case was lost, literally, because both
petitioner's self-contradictions, which were numerous and significant, as
well as the denials of her belatedly fashioned story, were all placed in the
footnotes. Otherwise stated, all of her allegations were given a preferred
billing, while all of the denials were placed in a secondary position.
The second Statement of Facts is from the respondent's briefs on the
merits in the same case, which after argument was reversed for further
proceedings. 332 U. S. 708. The second Statement of Facts reflects the
identical record, but it is differently organized—and it is the change in
organization and arrangement that, without a single word of editorial
comment, made evident the Government's strongest affirmative argument,
viz., the many discrepancies in, and hence the inherent improbability of,
petitioner's story.
A caveat should be entered here. If these examples are to be of the
slightest use to the student or practitioner of advocacy, he must first steep
himself in the facts of the case. At the outset, before turning to the briefs at
all, he must read the opinions at 161 F. 2d 113, because those opinions pose
the problem that faced the brief-writer. Next, the advocate should turn to the
two briefs that follow, and ask himself whether and in what respects one is
better than the other. I have already indicated why I think the second
superior to the first. Perhaps the reader will disagree; fine, provided he
comes up with reasoned grounds for thinking the contrary. (I should add
that I have no personal axe to grind in this matter, for while I did argue the
case, I did not write either Statement of Facts.)
Of course, if you already consider yourself an accomplished and expert
brief-writer, you can skip this entire chapter. But if you feel that you still
want to learn something about the process, you will simply have to sit down
and soak yourself in the details of this case and in the two ways in which its
problems were sought to be met. For it is one of the inescapable facts of the
brief-writing business that its principles are meaningful only as they are
related to a concrete controversy.
Just a word as to the sequel: When the case was heard again, the trial
judge disbelieved petitioner and discharged her writ of habeas corpus. Re
Von Moltke, Civil No. 5542, E.D. Mich., July 19, 1949. On appeal the Court
of Appeals once more affirmed, the same judge still dissenting. Von Moltke
v. United States, 189 F. 2d 56 (C.A. 6). Again the Supreme Court granted
certiorari, but this time there was an affirmance by an equally divided
Court. 343 U. S. 922.
So, in the end, Mrs. Von Moltke lost in the courts. But she ultimately had
the last word, because on June 11, 1954, the deportation proceedings
against her were terminated.* Ironically enough, her co-defendant, Mrs.
Behrens, who is mentioned throughout both Statements of Facts, failed to
convince even a single judge that she had received the same "advice" as
Mrs. Von Moltke. See Behrens v. Hironimus, 170 F. 2d 627 (C.A. 4).

Section 166. Statement of Facts from the brief in opposition to

the petition for certiorari in Von Moltke \. Gillies.
[*2] STATEMENT
On September 17, 1943 (see R. 17), an indictment was filed in the
District Court for the Eastern District of Michigan charging that petitioner
and others conspired to transmit to the German Reich materials and
information relating to the national defense of the United States with the
intent that they be used to the injury of the United States, and to collect and
publish information in respect of the movement and disposition of the
armed forces, ships, aircraft, and war materials of the United States with
intent to communicate such information to the German Reich, in violation
of Sections 2 and 4 of the Espionage Act of June 15, 1917, Title I, c. 30, 40
Stat. 217 (50 U.S.C. 32, 34). Forty-seven overt acts were alleged, of which
five (Nos. 24, 29-32) concerned petitioner. Four of these five (Nos. 24, 30-
32) charged that petitioner met and conferred with one Or more of the other
defendants on designated dates; the other (No. 29) charged that petitioner
introduced one Arndt to another defendant. Each overt act was specifically
alleged to have been committed "in pur-[*3]suance of said conspiracy and
to effect the object and purpose thereof." (R. 20-34.)
* Information kindly supplied by the Hon. L. Paul Winings, Chief
Counsel, Immigration and Naturalization Service.
Petitioner was arraigned on September 21, 1943; on the advice of an
attorney appointed by the court for the purposes of arraignment only, she
stood mute, and a plea of not guilty was entered on her behalf (R. 10-12, 47,
110-113). On October 7, 1943, petitioner signed a waiver of her right to
counsel (R. 36), withdrew her plea of not guilty, and entered a plea of guilty
(R. 159-160).
On August 7, 1944, petitioner, through counsel, moved for leave to
withdraw her plea of guilty on the grounds that it was made without
knowledge of her legal rights and understanding of the nature of the offense
charged, and that the acceptance of the plea by the court when she was
without counsel violated her right to counsel under the Sixth Amendment
(R. 37). Following a hearing,1 the motion was denied by Judge Moinet, who
found that petitioner was properly advised of her constitutional rights by the
court both prior to and at the time she entered her plea of guilty, that the
plea was submitted after due and careful deliberation, that petitioner was
advised of and thoroughly understood the nature of the charge contained in
the indictment, that the plea was not due to any promises or misrepre-
[*4]sentations, and that the motion for leave to withdraw the plea was not
filed within the tenday period prescribed by Rule 2 (4) of the Criminal
Appeals Rules (18 U.S.C., following § 688), which were then in effect (R.
46-47).
On November 15, 1944, petitioner was convicted on her plea of guilty
and sentenced to imprisonment for four years (R. 8-9). So far as the record
indicates, no appeal was taken.
On February 7, 1946, petitioner filed in the convicting court a petition for
a writ of habeas corpus, alleging that her imprisonment was illegal in that
she had been denied the assistance of counsel for her defense and had been
coerced, intimidated, and deceived into pleading guilty, in violation of her
constitutional rights (R. 1-7). The writ issued (R. 15-16) and a hearing was
held (R. 47-170). The district court (Judge O'Brien) found not only that
petitioner, "an intelligent, mentally acute woman" (R. 174), who was
"obviously of good education and above the average in intelligence" and
who had a "fluent and ample" knowledge of English (R. 171), had failed to
sustain the allegations of the petition by a preponderance of the evidence,
but that the overwhelming weight of the evidence showed that she had
freely, intelligently, and knowingly waived her constitutional rights (R.
170174). The writ was accordingly dismissed, and petitioner was remanded
to the respondent's custody (R. 175). On appeal to the Circuit Court of [*5]
Appeals for the Sixth Circuit, the judgment of the district court was
affirmed (R. 181), one judge dissenting (R. 189198).
1 The present record does not contain the proceedings at this hearing.
It is stated in the petition for a writ of certiorari that no testimony was
taken at the hearing (Pet. 12) .
Petitioner testified at the hearing on the writ as follows: She was arrested
on August 24, 1943, on a Presidential warrant as a dangerous enemy alien
(R. 48, 50). She was living in Detroit at the time with her husband, an
instructor in German at Wayne University, and two of her three children,
one of whom was suffering from diabetes (R. 48, 59). At some time
following her arrest, her husband was suspended from his |4,000-per-annum
teaching position and later got a job paying $35 per week (R. 168). In
addition to her household duties, petitioner was a member of the Red Cross
and a local Parent-Teachers Association, engaged in social work at a Y.W.C
A. International Center, and participated in such voluntary work as gasoline
and sugar rationing (R. 89-90). Following her arrest, she was questioned
from August 24 to August 27 by two agents of the Federal Bureau of
Investigation, both of whom were courteous and friendly to her (R. 49). On
September 18, 1943, a copy of the indictment involved herein (see supra, p.
2) was handed to her; she read it, but did not understand it (R. 50). On
September 21, 1943, she was taken before Judge Moinet to be arraigned;
she was advised by the judge that she was entitled to counsel; she stated
that she had no money, and the judge said he would appoint counsel for her.
A lawyer who [*6] was in the courtroom was appointed as her attorney for
the purposes of arraignment only; the lawyer did not see the indictment, but
merely asked her how she wished to plead, to which she replied, "Not
guilty"; on the lawyer's advice, she stood mute when arraigned, and a plea
of not guilty was entered for her.2 The judge then told her that he "would
appoint an attorney right away," from which she understood that "the
gentlemen was to be expected to come right away"; she was then taken to
Wayne County Jail. (R. 51-53.)
2Archie Katcher, the attorney appointed by Judge Moinet to represent
petitioner at her arraignment, testified that he talked to petitioner in a
whispered conversation for a few minutes; that he asked her and a
codefendant whom he was also representing, "both at once, whether they
understood what this was all about"; that one of them said she did
understand, and the other indicated that she too understood; that both
indicated they felt they were not guilty; and that he advised them to stand
mute when arraigned (R. 110-113).
Between September 23 and October 7, 1943, the date on which she
pleaded guilty, petitioner further testified, agents Kirby, Dunham, Hanaway,
and Collard of the F.B.I, came daily to the cell block where she and two
female codefendants were incarcerated (R. 53). The agents and the three
defendants would engage in "conversations and discussions" concerning
"things of interest," such as "hostile publicity, and sentiment, and cost of the
trial, and the inquisition of the Federal Judge" (R. 53-54). On one or more
of these [*7] occasions, petitioner asked Dunham, "Is it really so bad, that
the public is so hostile?"; "* * * if we go to Court, will we be bodily
attacked?" Dunham would reply, "It is war time—you have to bear that in
mind. Public sentiment grows from war hysteria. You don't need to be
afraid; you will be protected." This left her with "the thought that it is
terrible to go to court and face a hostile public." (R. 82-83.) 3 On another
such occasion, petitioner heard Kirby tell Mrs. Behrens, a codefendant who
had pleaded guilty, that "the other defendants" in the case would plead
guilty the following week; petitioner asked Kirby whether, if the other
defendants pleaded guilty, she would "get a trial for myself"; Kirby replied
that he "could not answer this question because he did not know if this
would be all right with the prosecuting attorney" (R. 85) .4
Petitioner also testified that on September 25, 1943, two attorneys
conferred with her at the request of her husband for some two and onehalf
hours (R. 56, 92). One of the attorneys, Okrent, "inquired was I to have
counsel," and she [*8] replied that Judge Moinet was going to appoint
counsel for her (R. 93). She talked only to Okrent; the other attorney,
Berger, "was just sitting there" (R. 92). She at no time asked the attorneys
anything about her case (R. 95); the discussion was exclusively concerned
with her family affairs (R. 93) .5
3Dunham denied that he ever advised or suggested to petitioner that
"public feeling was running high" in connection with the case (R. 154).
4 Kirby testified that when petitioner asked him about her right to a
trial in the event the other defendants pleaded guilty, he replied that "the
question of the trial would be up to the United States Attorney's office,"
and might also have stated that he "knew no reason why she should not
be tried without the others" (R. 134-135).
5 Berger testified that, though Okrent "did most of the talking," he also
talked to petitioner (R. 114), and, it would appear, quite extensively. He
interrogated petitioner as to the charges that had been made against her
(R. 114); he would read to petitioner parts of the indictment referring to
her, and put her through "a form of cross-examination" (R. 119); the
purpose of the interview was to discuss "this case" with her, and not
family matters primarily (R. 118); petitioner talked about her family
affairs, such as how her husband "was getting along, and whether he
would be reinstated," etc. (R. 117), but also talked "About this case,
about the indictment, or the conspiracy under the Espionage Act. We
wanted to know the whole story, and I presume she told us" (R. 115); the
"question of pleading guilty came up" and Berger told her "if you are
guilty, plead guilty; and if you are not, do not" (R. 120). The attorneys
made it clear, however, that they were not acting as attorneys, but merely
as friends of petitioner's husband (R. 116).
On or about September 27, 1943 (R. 56), petitioner further testified, she
summoned agent Collard for the purpose of obtaining from him "some
information as to the indictment. I didn't understand that." Up to that time
she had received no advice concerning the indictment. She told Collard that
"he has taken my statement and he knew that * * * I didn't do those [*9]
things which are called 'Over' Acts." (R. 54-55, 69.) Collard told her that
the indictment did not "cover the charge" (R. 55), that it did not "mean
much of anything" (R. 76), that "those charges don't mean a thing" (R. 77).
He then explained the indictment to her "by an example which he called
'Rum Runners,' " and which she understood as follows: "* * * if there is a
group of people in a 'Rum' plan who violate the law, and another person is
there and the person doesn't know the people who are planning the violation
and doesn't know what is going on, but still * * * this plan is carried out, in
the law the man who was present * * * nevertheless is guilty of conspiracy."
She then told Collard, "If that is the law in the United States, I don't know
how I ever can prove myself innocent, and how will any judge know how
am I guilty if this is the law?" Collard then explained about the "Probation
Department" and its functions. (R. 55.) Petitioner believed that Collard was
qualified to explain the indictment to her because she knew he was a lawyer
(R. 56) .6
[*10] As a result, apparently, of something told her by Mrs. Behrens, the
codefendant who pleaded guilty, petitioner began to fear, she further
testified, that if she did not "fall in line and plead guilty," her husband
would be implicated, as well as herself (R. 60-62). She asked Collard if that
was true, and Collard said that "he couldn't answer that question" (R. 61).
On September 28, 1943, she said to agent Hanaway, "As the matter stands,
and as I understand the situation, I am supposed to plead guilty"; she told
him she was "willing to cooperate," 7 but wanted assurance from Assistant
United States Attorney Babcock, who was handling the prosecution, of
three things—that the publicity concerning the case would be stopped
immediately, that she would be incarcerated, if at all, in an institution near
Detroit, and that she would never be deported. Hanaway agreed to convey
her message to Babcock. Later the same day, petitioner was taken to the
marshal's office, where she conferred with Babcock. She told Babcock that
she understood "the situation" and knew that he wanted her to plead guilty;
that if she pleaded guilty it was [*11] only "to cooperate," and not because
she was guilty, which she was not.8 She then repeated her three "conditions"
to Babcock. (R. 58-59.) Because, however, "the answer Mr. Babcock gave
me was not fully satisfactory," 9 and because she was advised by her
husband, in a conference with him at about the same time as her visit with
Babcock, not to do anything without consulting a lawyer, petitioner decided
not to plead guilty that day, and told Babcock that she wanted "to think the
whole situation over" (R. 60, 103-104).
6 Collard, an attorney who had practiced law (R. 140), testified that at
petitioner's request, he spent several hours discussing the indictment with
her (R. 139-140, 141); that he attempted to explain the nature of a
conspiracy to the best of his ability (R. 142); that he could not recall
petitioner's asking him to explain the meanings of "feloniously" and
"overt act," but that if she did, he probably tried to explain them (R. 143-
144); that he was unable to recall his use of any "rum runner" illustration,
though he might have used [* 10] such an illustration (R. 142-143); that
it was possible that petitioner asked him whether "merely conferring with
people who later turned out to be guilty of criminal acts would also make
her a criminal" but he could not recall such a question (R. 144) .
Notwithstanding her husband's advice, petitioner further testified, she did
not consult a lawyer (R. 65). After further reflection, she finally made up
her mind to plead guilty even though she knew she was innocent (R. 64).
Accordingly, on October 7, 1943, she talked to Babcock again and told him
she was ready to plead guilty. She repeated to him that her plea would be
made notwithstanding her knowledge of inno-[*12]cence.10 Babcock
accordingly took her before Judge Lederle because Judge Moinet was not in
court that day. (R. 65.) Judge Lederle asked her if the indictment had been
explained to her, and she replied in the affirmative, though it had not been
(R. 67-68). According to her testimony, he also asked her if she was
pleading guilty because she felt she was guilty, and she said, "Yes," though
this was not true (R. 68). A "note" was handed to her to sign; at first she
objected to signing it because it mentioned something about a trial which
she did not want; Babcock told her it was all right to sign it, however, so
she did (R. 66-67) -11 Judge Lederle then accepted her plea of guilty (R.
72). In a conversation with agents Dunham and Kirby shortly after pleading
guilty, [*13] petitioner told them "even then" that she "should not have pled
guilty"; that she "had done the wrong thing in pleading guilty" because she
was not guilty (R. 72-73) .12
 7Hanaway testified that he had no recollection of petitioner's ever
having said that she was pleading guilty because she wanted to cooperate
(R. 123, 124).
8Babcock testified that petitioner at no time stated to him that she
wished to plead guilty in order to cooperate, or that she wanted to plead
guilty even though she was not guilty (R. 159).
9Babcock testified that he made it very clear to petitioner that he had
no control over the publicity connected with the case, her place of
incarceration if she pleaded guilty, or the matter of her possible
deportation, and could therefore give her no assurance whatever in
respect of the three "conditions" she sought to attach to her proffered
plea of guilty (R. 158-159, 163-164). Hanaway also testified that
Babcock made this clear to petitioner (R. 123, 124-125).
10 Babcock specifically contradicted this testimony of petitioner (see
note 8, supra, p. 11). Collard, who was present at this second interview
between Babcock and petitioner, testified that he was "absolutely
positive" that petitioner did not state, either to Babcock or to himself,
that she wanted to plead guilty even though she was not guilty, or in
order to cooperate with the Government, but, on the contrary, that she
stated she wanted to plead guilty because she was guilty (R. 138).
"Around Christmas," 1943, petitioner further testified, she learned that it
was permissible for a defendant to withdraw a plea of guilty (R. 73) .13
Shortly after Christmas, she learned for the first time from Okrent, one of
the attorneys who visited her in jail (supra, pp. 7-8), and who eventually
represented her in her motion to withdraw her plea of guilty (see R. 37), of
a defendant's presumption of innocence and of the fact that, contrary to her
prior understanding, a defendant who pleads guilty may not appeal his case
(R. 73).
On cross-examination, petitioner testified that after having read the
indictment, she definitely felt that she was innocent of the charges
contained in it, though she did not know what those charges were (R. 90-
91). She admitted that she repeatedly asked the F.B.I, agents for advice as to
how to plead, because "There was nobody else I could ask." She denied that
the agents ever told her to consult her attorney.14 She denied that she [*14]
ever told the agents that she did not want an attorney.15 She denied that she
ever told the agents that she did not want the attorney her husband had sent.
(R. 96.)16 She denied that she ever told the agents that she had had
arguments with her husband regarding the matter of retaining an attorney
(R. 98)She denied that Babcock ever told her that she should not plead
guilty in reliance on any of the three "conditions" she had expressed to
him.18 Asked if she did not know, from the fact that her husband told her
she should not plead guilty before consulting an attorney, that she was
entitled to a lawyer before pleading [*15] guilty if she wished one, she
replied that she did not (R. 103). She denied knowing that she did not have
to plead guilty if she did not want to (R. 103, 105-106). She admitted that,
after her husband persuaded her, on the occasion of her visit with Babcock,
not to plead guilty before seeing a lawyer, she thereafter made the decision
to "disregard the advice that your husband had given you" and "plead guilty
instead" (R. 103-104). She maintained that she told Babcock that she
wished to plead guilty "Though I know I am not guilty," but only "To
cooperate, to fall in line, to get it over with," 19 though she admitted that no
one had requested her to do that (R. 105).
11This "note" was a formal waiver of her right to counsel (see R. 36).
Babcock testified that Judge Lederle "was extremely careful and
meticulous to make sure, as he always does, that [petitioner] understood
what she was doing." He further testified that the judge "interrogated her
as to whether she wished to have counsel represent her and advised her
as to signing a waiver of that right. * * * I wish to say again that I have
no distinct recollection now —let me put it this way: if any of our Judges
have missed doing that, I would have remembered that very distinctly."
(R. 166).
12
Kirby contradicted this testimony of petitioner (R. 133) . Dunham
was not questioned concerning this alleged statement of petitioner.
13
Petitioner's motion for leave to withdraw her plea of guilty was filed
August 7, 1944 (supra, p. 3).
"Dunham (R 147, 153), Hanaway (R. 128-129), and Kirby (R.
131132) all testified that they advised petitioner to consult counsel about
her case.
 15Kirby testified that when he told petitioner she should consult an
attorney, she "jerked her shoulders, and said she was not interested; that
she wanted to make up her own mind" (R. 132). Collard testified that on
more than one occasion petitioner told him she did not want an attorney
(R. 137). Dunham testified that petitioner told him that her husband "was
very determined she should have an attorney," but that she felt that the
problem of whether to plead guilty or not "was a problem she wanted to
decide herself" (R. 148; see also R. 153).
All four of the F.B.I, agents concerned testified, on behalf of the
respondent, that they made no promises of any kind to induce petitioner to
plead guilty (R. 122, 124, 131, 137, 147, 151, 153). All testified that
petitioner kept trying to induce them to advise her whether to plead guilty
or not, but they told her that that was a matter for her or her attorney to
decide (R. 121, 128-129, 131-132, 135, 137, 140, 148, 152, 153). Hanaway
testified that he told petitioner that "if she felt that she were innocent in her
heart she should under no circumstances plead guilty" (R. 122).
[#16] Collard testified that at the time he acceded to petitioner's request
that he explain the indictment to her she had a copy of the indictment, had
read it, and had the paragraphs pertaining to her circled or otherwise
marked (R. 140, 142). He further testified that he believed that petitioner's
plea of guilty was made "after due consideration with a full and complete
understanding of the charge made against her" (R. 146; see also R. 147).
16 Dunham contradicted this testimony of petitioner (R. 148, 153).
17Dunham testified that petitioner told him that her visits with her
husband were "unpleasant" because he kept insisting she retain counsel
(R. 148) .
18Babcock testified that he told petitioner that under no circumstances
should she plead guilty in reliance on anything he might say concerning
the conditions on which she wished to plead guilty, and that she would
have to make her decision with respect to her plea "on the basis of
whether or not in her own conscience she had to say that she was guilty"
(R. 159) .
19 See note 8, supra, p. 11.
 Babcock testified that he cautioned petitioner that her decision whether to
plead guilty or not should depend solely on her feeling of guilt or
innocence; that he would never have taken her to court to enter a plea of
guilty if she had told him she wished to plead guilty notwithstanding her
innocence; that Judge Lederle accepted her plea of guilty only after
proceeding "in the normal way"; that the "normal way" was for the judge to
ask the defendant if it was true that he wished to plead guilty, if the plea
was being tendered by reason of any promises or threats made to him, if the
plea was being made because the defendant was guilty, and if the defendant
had counsel or desired appointed counsel; and that only upon his receiving
satisfactory answers to these questions would the judge accept a plea of
guilty (R. 159-160). Other pertinent testimony by Babcock and the F.B.I,
agents is set out in footnotes 3-4, 6-12, 14-18, supra.

Section 167. Statement of Facts from the respondent's brief on

the merits in Von Moltke v. Gillies.
[*2] STATEMENT
On September 17, 1943 (see R. 17), an indictment was filed in the
District Court for the Eastern District of Michigan charging that the
petitioner and others conspired to transmit to the German Reich materials
and information relating to the national defense of the United States with
the intent that they be used to the injury of the United States, and to collect
and publish information in respect of the movement and disposition of the
armed forces, ships, aircraft, and war materials of the United States with
intent to communicate such information to the German Reich, in violation
of Sections 2 and 4 of the Espionage Act of June 15, 1917, Title I, c. 30, 40
Stat. 217 (50 U.S.C. 32, 34). Forty-seven overt acts were alleged of which
five (Nos. 24, 29-32) concerned petitioner. Four of these five (Nos. 24, 30-
32) charged that petitioner met and conferred with [*3] one or more of the
other defendants on designated dates; the other (No. 29) charged that
petitioner introduced one Arndt to another defendant. Each overt act was
specifically alleged to have been committed "in pursuance of said
conspiracy and to effect the object and purpose thereof." (R. 20-34.)
Petitioner was arraigned on September 21, 1943; on the advice of an
attorney appointed by the court for the purpose of arraignment only, she
stood mute, and a plea of not guilty was entered on her behalf (R. 10-12, 47,
110-113). On October 7, 1943, petitioner signed a waiver of her right to
counsel (R. 36), withdrew her plea of not guilty, and entered a plea of guilty
(R. 35).
On August 7, 1944, petitioner, through counsel, filed a motion for leave
to withdraw her plea of guilty and enter a plea of not guilty on the grounds
that she was not guilty of the crime charged, that her plea of guilty was
made "under circumstances of extreme emotional stress and during a time
of extreme mental disturbance, without knowledge of her legal rights and
without a thorough understanding of the nature of the offense charged," and
that the acceptance by the court of her plea of guilty when she was without
counsel violated her right to counsel under the Sixth Amendment (R. 37).
Petitioner also filed an affidavit in support of this motion (R. 38-45).
[*4] Following a hearing,1 the motion was denied by Judge Moinet, who
found that petitioner was properly advised of her constitutional rights by the
court both prior to and at the time she entered her plea of guilty, that the
plea was submitted after due and careful deliberation, that petitioner was
advised of and thoroughly understood the nature of the charge contained in
the indictment, that the plea was not due to any promises or
misrepresentations, and that the motion for leave to withdraw the plea was
not filed within the ten-day period described by Rule 2 (4) of the Criminal
Appeals Rules (18 U.S.C, following § 688), which were then in effect (R.
46-47).
On November 15, 1944, petitioner was convicted on her plea of guilty
and sentenced to imprisonment for four years (R. 8-9). No appeal was
taken.
Fifteen months later, on February 7, 1946, petitioner filed in the
convicting court a petition for a writ of habeas corpus, alleging that her
imprisonment was illegal in that she had been denied the assistance of
counsel for her defense and had been coerced, intimidated, and deceived
into pleading guilty, in violation of her constitutional rights (R. 1-7). The
writ issued (R. 15-16) and a hearing was held at which the following
testimony was adduced:
[*5] A. The undisputed evidence.—Petitioner was the wife of an
instructor of German at Wayne University and has lived in the United States
since the end of 1926 (R. 2, 48, 70). In addition to her household duties she
was a member of the Red Cross and the local ParentTeachers Association,
engaged in social work at the Y.W.C.A. International Center, and
participated in such voluntary work as gasoline and sugar rationing (R. 89-
90).
1 The present record does not contain the proceedings at this hearing.
It is stated in petitioner's brief that no testimony was taken at the hearing
(Br. 11). But the judge considered the affidavits on each side (cf. R. 149,
156, 146).
On August 24, 1943, she was arrested on a presidential warrant as a
dangerous enemy alien and detained at an Immigration Detention Home (R.
48-50, 126). From August 24 to August 27 she was questioned by two
agents of the Federal Bureau of Investigation, Collard and Hanaway (R. 49,
95, 121, 126-127, 143), and she gave them a signed statement (R. 55, 143).
She was not thereafter questioned about the case (R. 95, 143). Both of the
agents were courteous and friendly (R. 49).
On September 18, 1943, a copy of the indictment involved in the present
proceeding was handed to petitioner, and she read it (R. 50). On September
21 she and another woman defendant were brought before Judge Moinet for
arraignment. The Judge informed them that they were entitled to counsel,
and when they said they had no money for counsel, he stated that he would
appoint counsel for them (R. 51). The Court [*6] designated an attorney in
the court room to represent them, but, when the attorney stated that he did
not wish to be in the case, the judge appointed him for the purpose of
arraignment only (R. 51, 110-111). The attorney engaged in a whispered
conversation with the women and advised them that it would be to their
advantage to stand mute rather than plead not guilty (R. 51-52, 111-112).
On his advice, they stood mute and the court entered a plea of not guilty in
their behalf (R. 52-53, 112).
Petitioner was then taken to the Wayne County jail (R. 53). Two other
women named as defendants in the indictment occupied the same cell block
(R. 53). Two other agents of the F.B.I., Kirby and Dunham, came regularly
to the cell block to interrogate one of the other women, Mrs. Behrens, and
Hanaway also came there occasionally. Petitioner frequently engaged in
conversation with these agents. (R. 53-54, 122, 134, 147.)
 On September 25, Okrent, an attorney who had been a pupil of
petitioner's husband, and Okrent's partner, Berger, called on petitioner. They
told her they had come at her husband's request and would let her husband
know whether they would take the case. They conversed with petitioner for
about 214 hours. (R. 56-57, 91-93, 114118.)
Either on September 27 or Octber 2, petitioner asked Collard, one of the
F.B.I, agents, who had taken her statement, to call on her, and Collard did
so (R. 54, 56, 140). She questioned him about [*7] the indictment and he
attempted to explain it to her (R. 55, 75, 140).
On September 28 petitioner, on her own initiative, told Hanaway, another
F.B.I, agent, that she would plead guilty if she would receive assurances
that there would be no more publicity, that she would not be sent far away
from Detroit, and that she would not be deported (R. 58, 99-100). Hanaway
said that he would relay her message to the Assistant United States
Attorney, Babcock, who was in charge of the case (R. 58, 100, 123).
Petitioner saw Babcock on September 28 in the Marshal's office and
repeated those conditions to him (R. 58, 101, 124, 158-159). Babcock stated
that he had no control over the matters presented by petitioner but that he
would recommend that she be incarcerated near Detroit (R. 58-59, 101,
159). Babcock told her that the question whether to plead guilty or not
rested with herself alone and that he was not permitted to influence her (R.
101, 159). She told Babcock that she was not ready to plead guilty that day
(R. 60, 125). At her request she had conferred with her husband in the
marshal's office, and her husband had asked her not to do anything before
she saw a lawyer (R. 60, 103, 148) .2
[*8] On October 7, petitioner decided to plead guilty (R. 63, 65). She was
brought before Judge Lederle (R. 65, 138-139). The Judge at first demurred
at accepting her plea because there had been an appearance of counsel in
the case, but according to petitioner Babcock assured him that he could
accept the plea (R. 66). Petitioner then signed a written waiver of counsel
(R. 66-67) reading as follows
(R. 36):
I, Marianna von Moltke, being the defendant in the above entitled cause,
having been advised by the Court of my right to be represented by counsel,
and having been asked by the Court whether I desire counsel to be assigned
by the Court, do hereby, in open court, voluntarily waive and relinquish my
right to be represented by counsel at the trial of this cause.
The Judge asked her whether the indictment had been explained to her
and she said "Yes" (R. 67-68, 107, 139). The judge asked her whether she
was pleading guilty because she felt she was guilty and she replied in the
affirmative (R. 68, 107-108, 139).
Petitioner admitted that the agents never threatened her or made promises
to her to induce her plea of guilty (R. 99) and the agents testified that they
made no threats or promises of any kind to induce her to plead guilty (R.
121, 131, 133, 136, 147).
[*9] B. The conflicting testimony.—The circumstances surrounding the
succession of events set forth above were the subject of sharply conflicting
testimony.
1. Petitioner's understanding of the indictment Petitioner testified that
she read the indictment when it was handed to her but did not understand it
(R. 50).
2 After first denying that her husband had received any education in
law, petitioner admitted that he had received "a certain amount of
education in German law before the first World War" (R. 97).
The attorney who represented her at the time of arraignment testified that
he talked to petitioner and the other defendant for a few minutes, that he
asked them both "whether they understood what this was all about." One of
the women said "yes, they did understand, and the other indicated that she,
too, understood" (R. 111).
On cross-examination of petitioner the following occurred (R. 90
91):
Q. Mrs. von Moltke, when you were served with the indictment in this
case, did you read it? A. I read it.
Q. And after you had read the indictment, did you feel you were innocent
of the charges that were stated in the indictment? A. Yes, sir, definitely so.
Q. You did not feel you were guilty of those charges that you read in the
indictment?
 A. I did not feel guilty of those charges in the indictment.
[*10] Q. Then you knew what the charges were in the indictment.

A. Oh, no, and so far I might explain that to you, I knew—

Q. Just answer my question.
The Court. Answer the question.

A. Yes, I knew, not what the charges were, but I knew as I said before
that I saw I was accused of something of which I was not guilty. That was
how I understood that.
Q. Well, you read the indictment? Isn't that right?
A. I read the indictment.
Q. And you felt you were innocent of the charges that were described in
the indictment? A. And the overt acts. Q. And the overt acts? A. Yes.
2. The visit of attorneys Okrent and Berger.
Petitioner testified that when Okrent and Berger called on her on
September 25 at her husband's request, she discussed only family affairs
with them, that she talked only to Okrent, and that Berger "was just sitting
there" (R. 92-95). She said that Okrent asked her if she was to have counsel
and that she replied that Judge Moinet was going to appoint counsel for her
(R. 93).
Berger took the stand on petitioner's behalf. He testified that he and
Okrent, an associate in [*11] his law firm, went to see petitioner at the
request of her husband (R. 114). While Okrent "did most of the talking,"
Berger also talked to petitioner (R. 114). He interrogated petitioner as to the
charges that had been made against her (R. 114), and examined her insofar
as the indictment affected her (R. 119). He would read to petitioner parts of
the indictment referring to her, and put her through a "a form of cross-
examination" (R. 119). The purpose of the interview was to discuss "this
case" with her, and not family matters primarily (R. 118). Petitioner talked
about her family affairs, such as how her husband "was getting along, and
whether he would be reinstated," etc. (R. 117), but also talked "About this
case, about the indictment, or the conspiracy under the Espionage Act. We
wanted to know the whole story, and I presume she told us" (R. 115). The
discussion "was all around the case, and the incidental phases of the case"
(R. 119). The "question of pleading guilty came up" and Berger told her "if
you are guilty, plead guilty; and if you are not, do not" (R. 120). The
attorneys made it clear, however, that they were not acting as attorneys, but
merely as friends of petitioner's husband (R. 116).
3. The discussions with the F.B.I, agents Petitioner testified that between
September 23 and the time of her plea of guilty the F.B.I, agents visited her
cell block daily, and that after ques-[*12]tioning Mrs. Behrens, a
codefendant, they would engage in conversations with the women
concerning "things of interest" such as the "hostile publicity, and sentiment,
and cost of the trial, and the inquisition of the Federal Judge, and the—oh
things which were in the interest of the trial, and our present state" (R. 53-
54). On one of these occasions, petitioner testified, she asked Dunham, "Is
it really so bad, that the public is so hostile?"; "* * * if we go to Court, will
we be bodily attacked?" Dunham replied "It is war time—you have to bear
that in mind. Public sentiment grows from war hysteria. You don't need to
be afraid; you will be protected." This left her with "the thought that it is
terrible to go to court and face a hostile public." (R. 82-83.) On another
occasion, petitioner said, she heard Kirby tell Mrs. Behrens, who had
pleaded guilty, that "the other defendants" in the case would plead guilty the
following week; petitioner asked Kirby whether, if the other defendants
pleaded guilty, she would "get a trial for myself"; Kirby replied that he
"could not answer this question because he did not know if this would be all
right with the prosecuting attorney" (R. 85).
Dunham, Kirby and Hanaway testified that they did engage in
conversation with the three women defendants (R. 122, 134, 147). Hanaway
testified that he was present in petitioner's cell block on only a few
occasions and that at such times there was "general discussion among the
[*13] three ladies" which "centered about whether they were going to plead
guilty, or they were going to trial, or what was going to happen." "They
were all trying to make up their minds." Hanaway told petitioner that "if she
felt that she were innocent in her heart she should under no circumstances
plead guilty." (R. 122.) On one occasion petitioner asked him to explain the
indictment to her, and he refused, saying, "Mrs. von Moltke, I am not a
criminal attorney, and I do not want to attempt to explain this indictment to
you." He further told her that "she should either have her attorney, or the
United States Attorney explain it to her." (R. 121, 129.)
Dunham testified that petitioner kept "endeavoring to get advice or
information from me, or opinions," but that he declined to advise her (R.
151). She avidly read newspaper items concerning her case and "made
many insinuations" on the basis of them (R. 151-152). She asked him "what
her chances were in case she went to trial," and he told her he could not
answer. She "went so far as to ask me if I could cite a similar case and
advise her what the outcome was and I told her I could not." (R. 152.) She
asked him if he knew whether Dr. Thomas, a codefendant, would plead
guilty or not, and he told her he did not know. He finally "came out and told
her she should discuss this with an attorney." (R. 153.)
[*14] On one occasion, Dunham testified, petitioner inquired of him as to
the nature of the charge against her, and he told her that he "couldn't explain
the indictment to her or talk to her about it," and that he "would advise her
to discuss the matter with an attorney" (R. 147). Dunham testified that he
never advised or suggested to petitioner that public feeling was running
high in connection with the cases in which she was involved (R. 154).
Kirby testified that when petitioner asked him whether she would have
the right to a trial if the other defendants pleaded guilty he told her that "the
question of the trial would be up to the United States Attorney's Office,"
and that he might have told her that he "knew of no reason why she should
not be tried without the others" (R. 134135).
4. Collard's advice In regard to her conference with Agent Collard,
petitioner testified that about September 27, she asked to see him because
she wanted "some information as to the indictment. I didn't understand that"
(R. 55, 56). She said she believed Collard was qualified to explain the
indictment to her because she knew he was a lawyer (R. 56). She said she
told Collard that he had taken her statement and knew that "I didn't do those
things which are called 'Over' Acts." (R. 55.) Collard told her [*15] that the
indictment did not "cover the charge" (R. 55), that it did not "mean much of
anything" (R. 76), that "those charges don't mean a thing" (R. 77).
According to her testimony, he then explained the indictment to her "by an
example which he called the 'Rum Runners,'" and which she understood as
follows: "# * * if there is a group of people in a 'Rum' plan who violate the
law, and another person is there and the person doesn't know the people
who are planning the violation and doesn't know what is going on, but still
* * * this plan is carried out, in the law the man who was present * * *
nevertheless is guilty of conspiracy." She then told Collard, "If that is the
law in the United States, I don't know how I ever can prove myself
innocent, and how will any judge know how am I guilty if this is the law?
Collard, petitioner testified, then explained about the "Probation
Department" and its functions (R. 55). At another point, petitioner testified
that she told Collard that since he had taken her statement he knew that she
was never in Grosse Pointe where one of the overt acts naming her was
alleged to have occurred, and that she had "nothing to do with all the people
named here" (R. 64-65, 75-76). It was after these statements, she testified,
that he gave her the rum runners' illustration (R. 76).
Collard testified that on October 2 he received a message that petitioner
wanted to talk to him. [*16] When he visited petitioner she had a copy of
the indictment that had circled the various "counts" that mentioned her (R.
140, 142). He talked with her for several hours and explained the nature of
conspiracy to the best of his ability (R.
141- 143). The following occurred on Collard's cross-examination (R.
142- 144):
Q. And did you during that discussion use an illustration about a rum
runner?
A. Well, I heard Mrs. von Moltke say that, and since she did I have been
trying to recall, and I cannot remember such an illustration.
Q. I see.
A. But it is quite possible that Mrs. von Moltke's memory is better than
mine, and I may have used such an illustration.
Q. (By Mr. Field) : Did Mrs. von Moltke ask you the difference, or to
define the difference between a combination, a conspiracy, and a
confederation?
A. I am sure I don't know whether she asked me such a question or not.
Q. You don't recall that?
 A. No, I don't believe I do.
Q. Did you discuss with Mrs. von Moltke whether she introduced one
Edward Arndt to Grace Buchanan Deneen? A. This is on the occasion of
October 2? Q. October 2, 1943.
A. I will have to answer that by saying that if that is one of the Overt acts
in-[*17]volving Mrs. von Moltke, then I did discuss it with her.
Q. And did you explain to Mrs. von Moltke the nature of an Overt act?
A. Well, if she asked me, I probably tried to, but whether she asked me or
not I just don't remember.
Q. And did Mrs. von Moltke ask you whether merely conferring with
people who later turned out to be guilty of criminal acts would also make
her a criminal, and guilty of criminal acts?
A. I do not just recall that particular question. It is quite possible.
Collard testified that he did not indicate to petitioner the course she
should pursue (R. 144). He testified that he told her that the question of
whether she should plead guilty "was a matter strictly for her, and for
nobody else" (R. 137). He reaffirmed the statement he had made in
opposition to petitioner's motion to withdraw her plea that the plea was "her
free and voluntary act made after due consideration with a full and
complete understanding of the charge made against her in the indictment in
the instant case" (R. 146). He said on the stand that "As far as I knew and
could understand, she understood thoroughly what the whole thing was all
about" (R. 147).
On cross-examination petitioner testified as follows (R. 91): [*18] Q.
Now, after you talked to Mr. Collard, did you still feel you were innocent of
those charges?
A. Yes, sir, because I told Mr. Collard so.
Q. After Mr. Collard had explained the indictment to you, did you still
feel you were innocent of the charges described in the indictment?
A. I told Mr. Collard so, and I could not go outside of the fact of the rum
runners—
 Q. Regardless of what Mr. Collard told you, you still felt you were
innocent of the charges in the indictment?
A. Yes, sir.
In response to a question from the bench, petitioner admitted (R. 75) that
no government official told her that she had to prove her innocence.
5. The September 28th conference with Assistant U. S. Attorney Babcock
Petitioner testified that on September 28, when she first said she was going
to plead guilty, she told Hanaway, "As the matter stands, and as I
understand the situation, I am supposed to plead guilty." She told him she
was "willing to cooperate" but wanted her conditions met (R. 58). On cross-
examination she admitted that she initiated the discussion of her plea of
guilty (R. 99-101). She further testified that she told Babcock that she
understood the situation and [*19] knew that he wanted her to plead guilty,
but that if she pleaded guilty it was only "to cooperate" and not because she
was guilty (R. 58). She also testified that while Babcock gave her no
guarantees, he told her he did not believe she would be deported and that
they were "human" (R. 58-59, 102-103). She testified that she did not plead
guilty on September 28 because "The answer Mr. Babcock gave me was not
fully satisfactory" (R. 103), and because her husband, whom she had seen
that day, asked her not to do anything without consulting a lawyer (R. 60,
103-104). She therefore told Babcock she wanted "to think the whole
situation over" (R. 60) .
Hanaway testified that he could not recall petitioner saying that she was
pleading guilty because she wanted to cooperate (R. 123-124). All he
recalled were the three conditions upon which she wished to predicate her
plea (R. 123). He testified that he conveyed petitioner's conditions to
Babcock, and that Babcock told him he had no control over those matters
but that he would recommend that petitioner be sentenced to an institution
near Detroit since her child was ill, emphasizing, however, that his
recommendation would not be binding on the Bureau of Prisons (R. 123).
Hanaway testified that he conveyed Babcock's message to petitioner (R.
123-124), and that subsequently Babcock repeated the same statements to
petitioner in stronger form, pointing out that he did [*20] not know how
long he would be an Assistant United States Attorney (R. 124-125).
Babcock made it very clear that petitioner's plea of guilty would have to be
independent of any of the conditions which she expressed to him (R. 124,
125). Babcock also told petitioner she should not plead guilty unless she
was guilty (R. 125).
Babcock testified that he told petitioner that he had no control over the
newspapers, that he could do nothing about deportation, since that was a
question for the Immigration and Naturalization Service to determine, and
that, although he could not control the place of incarceration, he would
recommend that she be imprisoned near Detroit where her family might see
her (R. 159). He told her that "under any circumstances anything I might
reply to her questions must not have any bearing whatsoever upon her
decision to plead guilty or not plead guilty; that she would have to decide
that for herself, on the basis of whether or not in her own conscience she
had to say that she was guilty" (R. 158-159). He vigorously denied that
petitioner had at any time told him she was pleading guilty in order to
cooperate, or that she was pleading guilty even though she was not guilty
(R. 159).

6. The period between the September 28th conference

and petitioner's plea on October 7th

Petitioner testified that between September 28 and October 7, as a result

of something said by [*21] Mrs. Behrens, she began to fear that if she did
not "fall in line and plead guilty" her husband would be implicated. She
asked Collard if that was true and Collard said that he couldn't answer that
question (R. 60-61) .3 She further testified:
I asked Mr. Collard, "Do you think that in my statement, I told the truth?
Mr. Collard said, "Mrs. von Moltke, I know—we know— you told the
truth." And I asked Mr. Collard what does the FBI think—is my husband
telling the truth? And she said, "Yes, we know that he is telling the truth."
Later on I talked to Mr. Dunham, and he said they know my husband would
tell the truth whether he hurts himself, or me, or anybody else. But as to this
question, I felt that there was some proof in it.
Petitioner also testified that while the F.B.I, agents asked her whether she
had seen an attorney (R. 84, 104), none of them ever told her that she
should get advice from an attorney (R. 85, 96).
 Kirby testified that when the subject of whether she should plead guilty
or not came up on one occasion following her conference with Babcock
[*22] on September 28, he told her that "that would be a question for her to
decide, or her attorney, as we had understood from Mrs. von Moltke that
Mr. von Moltke was interested in obtaining an attorney for her." At this
suggestion, petitioner "jerked her shoulders and said she was not interested;
that she wanted to make up her own mind." (R. 131-132.) On another
occasion petitioner inquired of Kirby whether a plea of guilty on her part
would bar her husband from being reemployed. He replied that "that was a
matter * * * between the University and himself, and the question of her
plea was one that she had to decide, based upon her own feeling of guilt or
innocence." (R. 135.)
Hanaway testified that on one occasion, when petitioner asked him to
explain the indictment to her, he told her that she should have either her
attorney or the United States Attorney explain it to her (R. 121, 129).
Collard testified that he told her she "could see an attorney at any time,
that that was her privilege" (R. 140) and that she told him that she did not
want an attorney (R. 137). He testified that "In all the conversations that I
had with Mrs. von Moltke concerning the attorney, it was her idea that she
did not want an attorney, and that she wanted to just go ahead without an
attorney, and do whatever she was going to do without one" (R. 137).
3In her affidavit in support of her motion of August 7, 1944, for leave
to withdraw her plea of guilty (see p. 3, supra), petitioner stated that "she
asked Mr. Collard whether her husband was in any way involved in the
matter, and Mr. Collard replied to her that he was sorry but that he could
give her no information concerning that fact, and that although at present
she realizes that that was a perfectly proper and normal answer, at the
time it was given to her, because of her state of mind, this was
confirmation of the statement made to her by Mrs. Behrens" (R. 40-41) .
[*23] Dunham testified that when petitioner questioned him about the
indictment and about whether Dr. Thomas, a codefendant, would plead
guilty he "finally came out and told her she should discuss this with an
attorney" (R. 153). She told him that her husband was determined that she
have an attorney but that she didn't want to discuss the matter with an
attorney, that "it was a problem she wanted to decide herself." She said she
didn't feel an attorney would be of much assistance to her "because her
consideration was not only for herself, but for her husband and family" (R.
147-148). Petitioner said that her visits with her husband were unpleasant
because he wanted her to have an attorney but she was determined to make
up her own mind (R. 148).
On cross-examination petitioner was questioned about her decision not to
plead guilty on September 28. The record reveals the following (R. 103-
104):
Q. And your husband told you not to plead guilty?
A. He did.
Q. He told you to get a lawyer?
A. Yes; he said I should not before I have seen an attorney; on such a
question I should talk to an attorney first about the whole thing.
Q. Then you knew at that time that you were entitled to a lawyer before
you pled guilty, if you wanted one?
[*24] A. I did not. I just was wondering about the lawyer who never
came.
Q. Well, you knew at that time, did you not, that you did not have to
plead guilty if you did not want to? Yes or no?
A. No.
Q. Your husband told you to get a lawyer, didn't he?
A. My husband said to wait until a lawyer comes out.
Q. And you decided not to plead guilty because of that?
A. Because of that, yes.
Q. And you went back to the County Jail?
A. And the answer Mr. Babcock gave me was not fully satisfactory.
Q. At any rate, you decided not to plead guilty because of what your
husband told you?
A. Yes.
 Q. Did you see your husband about getting a lawyer before you pled
guilty?
A. No, sir, I pled guilty, and my husband even did not know it.

7. The events of October 7th, when petitioner waived

counsel and pleaded guilty

On October 7, petitioner decided to plead guilty (R. 63). She testified that
Collard "came in just to see how I felt about it, and whether I had seen a
lawyer, because I said I wouldn't decide before I had seen a lawyer" (R. 65).
She told Col-[*25]lard and Hanaway, who was with him, that she wished to
"go with them to plead guilty." They asked her "whether I had seen my
lawyer, and whether I had thought about what I was going to do." She stated
that she replied, "I wish I would know whether that is the right thing, if I go
and plead guilty." One of the agents—she could not remember which—
then remarked, "At least it might be the wisest thing." (R. 63, 64.) She was
then taken to Babcock and again told him she was ready to plead guilty. She
testified that she repeated to him that her plea would be made even though
she still felt she was not guilty (R. 65). Babcock accordingly took her
before Judge Lederle because Judge Moinet was not in court that day (R.
65).
Petitioner testified as follows relative to the proceedings before Judge
Lederle: "Mr. Babcock handed the judge what I would call a folder, and
Judge Lederle looked into that and said he could not accept the change of
plea because there was something about an attorney— * * * I understood
that he said there was to be appointed an attorney in this case, or there was
appointed an attorney in this case, or there was to be present an attorney—
but I knew distinctly the judge said he could not accept the change of the
plead, and Mr. Babcock explained to him that this was different, and that he
could accept the change of the plead" (R. 66). Judge Lederle asked her if
the [*26] indictment had been explained to her, and she replied in the
affirmative though according to her testimony it "had not been fully
explained" to her (R. 67-68). He also asked her if she was pleading guilty
because she felt she was guilty, and she said, "Yes," though according to her
testimony this was not true (R. 68). A "note" was handed her to sign and
according to her testimony she objected because it mentioned something
about a trial, but Babcock told her it was all right to sign it and she did so
(R. 66-67). On cross-examination, petitioner testified that (R. 106) "I was
so confused, and so nervous I did not hear what the judge said."
Hanaway denied that he told petitioner that it would be wiser to plead
guilty (R. 124-125) .4 Babcock denied that petitioner ever stated to him that
she wanted to plead guilty although she was not guilty (R. 159), and
Collard, who was present at the interview with Babcock on October 7,
stated that he was "absolutely positive" that petitioner did not make such a
statement to Babcock (R. 138). Furthermore, Collard testified, petitioner did
not state that she wanted to plead guilty in order to cooperate; she said she
wanted to plead guilty because she was guilty (R. 138). Babcock told
petitioner that Judge Moinet, the judge who was handling her case, was not
available on that day and that it would be much more convenient to wait
[*27] until another time, but petitioner said she wanted to enter her plea
"right then" (R. 138).
4 Collard was not questioned about this incident.
Babcock testified that after petitioner announced to him her decision to
plead guilty, he "recounted to her the normal procedure in the court room,
telling her that when you appear before one of the United States District
Judges, the Judge would ask if she was tendering her plea as a result of any
promise made to her, whether it was a result of any threats upon her or
whether it was because she was guilty. That he would also ask her if she
desired to have counsel appointed to advise her." She reaffirmed her
decision to plead guilty (R. 159).
Babcock further testified that after taking petitioner before Judge Lederle
(R. 159), he informed the judge that petitioner wished him to make a
motion to change her plea from that of not guilty to guilty (R. 160).
* * * Thereupon I recall the Court proceeded in the normal way. Now, the
normal procedure is for the Court to ask the Defendant if the information
given to the Court is correct, if the Defendant desires to plead guilty, and
ask the Defendant if such plea of guilty is tendered by reason of any
promises made to the Defendant, if such plea of guilty is made by reason of
any threats made upon the Defendant, if such plea of guilty is their
voluntary plea and made because the Defendant is guilty and if the
Defendant de-[*28]sires to have counsel appointed by the Court. First of all,
if the Defendant has counsel of his or her choosing, and if not, if the
Defendant desires counsel appointed by the Court to advise the Defendant
in connection with the matter. Upon being satisfied that the action tendered
by the Defendant is free and voluntary, without promises or threats of any
kind and because the Defendant is guilty, the Court will then accept the plea
of guilty and proceed with further disposition of the case. (Ibid.)
Babcock denied that petitioner told him, when she signed the waiver, that
the reason she was appearing there was because she did not want to go to
trial; he testified that he observed petitioner reading the waiver and that she
made no statement whatsoever to him regarding it (R. 162-163). He further
testified relative to petitioner's understanding of the waiver (R. 166):
* * * Judge Lederle was extremely careful and meticulous to make sure, as
he always does, that she understood what she was doing.
He interrogated her as to whether she wished to have counsel represent
her and advised her as to signing a waiver of that right. Again, Mr. Field, I
hope you understand, and I wish to say again that I have no distinct
recollection now—let me put [*29] it this way: if any of the Judges have
missed doing that, I would have remembered that very distinctly.
Kirby testified (R. 133) that "the judge inquired whether or not the plea
of guilty was upon the suggestion of any Government agent," and petitioner
said no.
Collard testified that he was in the court room and that Judge Lederle
asked petitioner a number of questions but that he could not recall them all.
He said that the judge "went to considerable pains to ask her the questions
that he should have to guarantee the rights that she had, and to convince
himself * * *" (R. 139).
Petitioner testified that, after leaving the court room, she told agents
Kirby and Dunham that she should not have pleaded guilty, that she had
done the wrong thing because she was not guilty (R. 7273). Kirby denied
that she made such a statement after leaving the court room, although he
testified that much later, in January 1944, she made such a statement (R.
133). Dunham was not questioned about the matter. Collard testified that
petitioner made no such remark either to him or to anyone else in his
presence as she left the court room and returned to jail (R. 139).
 At the conclusion of the testimony, the district judge found that petitioner
had failed to sustain [*30] the allegations of the petition by a preponderance
of the evidence. He said (R. 170-171, 174):
In the petition filed in this cause the petitioner directly or by implication
charges that the District Attorney having the case in charge and agents of
the Federal Bureau of Investigation misled her or made promises to her that,
which at least some degree, influenced her action in pleading guilty to the
charge. I am of the opinion that these charges have now been abandoned by
the petitioner but for the purpose of the record I wish to state most
vigorously that there was absolutely nothing in the testimony sustaining
such charges or implications. The conduct of both the officials of the
District Attorney's office and the agents of the Federal Bureau of
Investigation were meticulous in safeguarding the rights of the petitioner
and that the record is utterly bare of any support of petitioner's contentions.
The petitioner is a woman obviously of good education and above the
average in intelligence. Her knowledge of English was fluent and ample.
The only substantial question in this case is whether the petitioner
intelligently and knowingly waived her constitutional rights. It was her
obligation to sustain the allegations of her petition by a preponderance of
evidence. Not only has she failed in this but I believe that the evidence
[*31] is overwhelming against her contentions. The petitioner is an
intelligent, mentally acute woman. She understood the charge and the
proceedings. She freely, intelligently and knowingly waived her
constitutional rights. I conclude, therefore, that there is no merit in her
petition and that it shall be dismissed together with the writ.
On appeal, the judgment of the district court was affirmed (R. 181), one
judge dissenting (R. 189-198).
 CHAPTER XIII

SUCCESSFUL PETITIONS FOR REHEARING

Section 168. Essentials of a successful petition for rehearing.

—As has already been pointed out, see Sections 143 and 147 above, if a
petition for rehearing is to be more than a futile exercise in articulated
frustration, it must concentrate on what the court's opinion has overlooked.
In Attorney General Garland's rugged phrases,
Petitions for rehearing, or motions for new trials, are supposed to gather
up the whole case and present it compactly and broadly. This is the great
sphere where lawyers are really to show their strength and power and
knowledge, and where the courts are at last brought face to face with the
very kernel of the case, and after all, where upon consultation with counsel,
after each has spoken and been heard, they are to examine profoundly and
see what the case does really call for.1
Or, to employ a mid-Twentieth Century metaphor, when a lawyer sets out
to draft a petition for rehearing, he is facing the moment of truth.

Section 169. Example of a successful petition for rehearing in a

Court of Appeals.
—In considering the document that is reproduced in the section which
follows, the reader should have these dates in mind:
Appellant's reply brief in the Herzog case—the one now in question—
was filed on April 12, 1955. On the day before, April 11, a division of the
Ninth Circuit had decided Block v. United States, 221 F. 2d 786, which
reversed a conviction on the strength of an erroneous charge to which no
objection had been made at the trial. An identical instruction, similarly not
objected to, appeared in the Herzog record. When the Herzog case was
argued, on April 19, counsel for the appellant relied on the Block decision
as an additional ground for reversal; the court requested that this ground be
set forth in a supplemental memorandum, and such a document was duly
filed the next day, on April 20.
1 Garland, Experience in the U. S. Supreme Court, 53-54.
Six months later, on October 11, 1955, the Ninth Circuit decided the
Herzog case. 226 F. 2d 561. It held that Block had been overruled sub
silentio by Brown v. United States, 222 F. 2d 293, decided three days later
by still a third division of the Ninth Circuit, and that under Criminal Rule
52 (b) a Court of Appeals had no power to consider any error in a charge to
which no objection had been made at the trial pursuant to Criminal Rule 30.
Appellant considered this a literally fantastic holding, not only because
no other court had ever construed Rule 52 (b) so restrictively, but primarily
because, if Block had been overruled sub silentio three days later by Brown,
then by parity of reasoning Brown was similarly overruled sub silentio
when the Government's petition for rehearing in Block was denied with
opinion two months after that, on June 14, 1955. 223 F. 2d 297.
What should be the next step? If only the misconstruction of Rule 52 (b)
had been in question, a petition for certiorari was clearly indicated. But with
the Ninth Circuit going off in all directions at once, its several panels
apparently unaware of what they were concurrently deciding, it was not at
all clear that the Supreme Court would, in the first instance, undertake to
resolve this intracircuit conflict.2
Accordingly, counsel for the appellant determined to seek a rehearing in
banc in the Court of Appeals.
The basic issue, the scope of Criminal Rule 52 (b) in the light of Block
and Brown, assuredly qualified (see Sections 143 and 147 above) as
something that the court had overlooked. The other two issues, which were
the strongest of those remaining, were added more as an act of faith than by
reason of any genuine hope that they would be reconsidered.
Before going on to examine the actual petition for rehearing, the reader
should first consult the opinion (Herzog v. United States, 226 F. 2d 561)
concerning which that petition complained.
 Section 170. The successful petition for rehearing in Herzog v.
United States.
—Below is set out, verbatim, the petition for rehearing filed in the
Herzog case; the cover, index, and the motion to stay the mandate (in the
event of denial) have been omitted.
2 See Civil Aeronautics Board v. American Air Transport, 344 U. S. 4,
5; In re Burwell, 350 U. S. 521, 522.

Comes now the appellant in the above-entitled case, and respectfully

prays the Court to grant a rehearing.
I. The principal question in the present posture of the case is whether the
trial judge's charge to the jury on willfulness was correct, and whether, not
having been objected to under Criminal Rule 30 at the trial, this Court on
appeal may consider the alleged error under Criminal Rule 52 (b).
In Bloch v. United States, 221 F. 2d 786, a division of this Court (Bone
and Pope, Circuit Judges; Mur-[*2]ray, District Judge), held an identical
instruction to be erroneous, held that it could be considered in the absence
of objection below, and reversed the conviction.
 In Brown v. United States, 222 F. 2d 293, another division of this Court
(Stephens and Fee, Circuit Judges; Wiig, District Judge) held that there was
no power to consider errors not objected to below.
In the instant case, still a third division of this Court (Mathews and
Chambers, Circuit Judges; Byrne, District Judge), disagreed with the Bloch
case and agreed with the Brown case, "which was decided three days after
and overrules sub silentio the Bloch case" (p. 7 of slip opinion). Judge
Chambers concurred, saying (p. 11 of slip opinion), 'Although I disagree
with the decision in the Bloch case, I would be reluctant to go against it
were it not for my belief that Brown v. United States, 9 Cir., 222 F. 2d 293,
already has overruled Bloch sub silentio."
II. Bloch was decided on April 11, 1955, Brown on April 14, 1955. The
Government petitioned for a rehearing in the Bloch case. If Brown had
overruled Bloch, then, obviously, that petition for rehearing should have
been granted. In fact, it was denied on June 14, 1955, in an opinion reported
at 223 F. 2d 297.
If therefore it can properly be said that Brown overruled Block sub
silentio when rendered by a different division of this Court three days later,
then it can be contended with equal force that Brown was in [*3] turn
overruled sub silentio by the denial of the Government's petition for
rehearing in Block two months after that.
III. There can be no disagreement with what was said in the prevailing
opinion in this case (p. 7 of slip opinion): "The Brown case and the Block
case cannot both be right."
In our view, the Block case, which held that failure to object under Rule
30 was no bar to the invocation of Rule 52 (b) by the Appellate Court, is
correct. That view has the support of no less than six other circuits.
First Circuit: Daigle v. United States, 181 F. 2d 311, 313 (instruction not
objected to below considered by the Appellate Court); Lash v. United
States, 221 F. 2d 237, 240, certiorari denied, 350 U. S. 826 (no conflict
between Rules 30 and 52 (b); they are to be construed together) .
Third Circuit: United States v. Cumberland, 200 F. 2d 609 (judgment
reversed for errors in instructions not objected to at the trial); United States
v. Ward, 168 F. 2d 226, 228 (plain error in instructions can be noticed
though not called to Court's attention at the trial).
Sixth Circuit: Lazarov v. United States, 225 F. 2d 319, 329 ("No
exception was taken to the instruction but, of course, an appellate court will
consider an error in the charge which is seriously prejudicial or amounts to
a grave miscarriage of justice even though no objection was made in the
trial court.")
[*4] Seventh Circuit: United States v. Vasen, 222 F. 2d 3, 5-6, certiorari
denied, 350 U. S. 834 (Rules 30 and 52 (b) to be construed together in cases
of glaring errors); United States v. Raub, 177'F. 2d 312, 315 (erroneous
instruction may be noticed under Rule 52 (b) notwithstanding failure to
comply with Rule 30).
Tenth Circuit: Apodaca v. United States, 188 F. 2d 932, 937 (Rules 30
and 52 (b) to be construed together).
District of Columbia Circuit: Robertson v. United States, 171 F. 2d 345
(plain error in instructions will be noticed though not called to Court's
attention at the trial).
There are indications in other decisions of this Circuit that support the
Block rule. See Remmer v. United States, 205 F. 2d 277, 290, note 16: 1
"Plain error in instructions should of course be noticed regardless of
whether the matter was properly brought to the attention of the trial Court."
(Mathews, Stephens, and Orr, Circuit Judges.) Compare Jones v. United
States, 175 F. 2d 544 (plain error noticed; no showing of compliance with
Rule 30) (Mathews, Healy, and Pope, Circuit Judges).
1 Judgment vacated on other grounds, 347 U. S. 227; reaffirmed, 222
F. 2d 720 (C.A. 9); certiorari granted, Oct. 10, 1955 (350 U. S. 820), and
now pending in the Supreme Court as No. 156, Oct. T. 1955.
And, in a case decided shortly after the adoption of the Federal Rules of
Criminal Procedure, the Supreme Court cited Rule 52 (b) to reach and
reverse [*5] for an erroneous instruction to which no exception had been
taken at the trial. United Brotherhood v. United States, 330 U. S. 395, 411-
412.
 Finally, the Rules Committee's notes show that the interpretation placed
on Rule 52 (b) by most of the circuits and by the Bloch ruling in this
Circuit, viz., that the rule enlarges the power of the appellate tribunal, was
precisely the one intended: "The concept of plain error has served to relieve
the harshness of the general rule that an appellate court will not consider
alleged errors to which objection and exception were not interposed at the
trial." Preliminary Draft, Federal Rules of Criminal Procedure (May 1943),
p. 198; Second Draft, Federal Rules of Criminal Procedure (February
1944), p. 186. In the light of this expressed purpose, we submit that it is not
open to conclude that an Appellate Court lacks power to consider an
erroneous instruction not objected to at the trial.
We think, therefore, that both the Brown case and the prevailing opinion
in this case read Criminal Rule 52 (b) too restrictively.
IV. What seems to us particularly disturbing about the affirmance in this
case is that it applies one rule to Bloch in April and June and another to this
appellant in October in substantially identical circumstances; for every
element present in the Bloch case was present in this case also.
1. The charge condemned in the Bloch case was as follows (221 F. 2d at
789):
[*6] "Wilfully in the statute, which makes a willful attempt to evade taxes a
crime, refers to the state of mind in which the act of evasion was done. It
includes several states of mind, any one of which may be the willfulness to
make up the crime.

"Willfulness includes doing an act with a bad purpose. It includes

doing an act without a justifiable excuse. It includes doing an act
without ground for believing that the act is lawful. It also includes
doing an act with a careless disregard for whether or not one has
the right so to act." (Italics in original.)

The corresponding charge in this case was as follows (R. 17031704):

"Now, when we use the term 'Wilful' in speaking of a violation of this
statute, as used in this criminal statute and as used in most criminal statutes,
we mean an act done with a bad purpose without justifiable excuse, or
stubbornly or obstinately or perversely. It may be used to characterize an act
done without grounds for believing it is lawful, or conduct marked with
completely careless disregard of whether one has a right to do that or not."
The two passages are almost in haec verba, without any difference
whatever in substance.
2. Appellant in Block raised no objection to the passage just quoted;
appellant here, similarly, raised no objection to the quoted portion of the
charge in this case.
Appellant in Block requested another instruction on willfulness, duly
excepted to the failure to give it, [*7] and briefed the issue on appeal; this
Court held that the requested instruction was erroneous. (Block opinion, 221
F. 2d at 787.)
Appellant here requested other instructions on willfulness (Nos. 18 and
19, R. 25-26), excepted to the failure to give them (R. 1711), assigned the
failure as error (Point 12 (c), R. 1727-1728), but did not brief it further.
3. The question of intent was of critical importance in both cases.
Appellant here conceded that the profit on eleven sales of "executive" or
"house" cars in 1948 was not reported but contended that the omission grew
out of Smith's manipulation of these particular automobiles in the course of
his embezzlement rather than from any intent to evade taxes. (See
Appellant's Opening Brief, p. 5.) The Government, for its part, similarly
stresses the importance of this item in the alleged "pattern" of evasion. (See
U. S. Br., pp. 9-10, 30-34.) The jury might well have thought that the failure
to trace the disposition of these eleven cars after Smith was discharged was
a "careless disregard" of appellant's obligations, which, under the Court's
instruction, would be tantamount to willful evasion.
4. The factual setting in this case is identical with that in Block: the same
instruction, the same lack of objection, the same kind of case. The question
is not whether the appellant here would have had standing as an original
proposition to assail the instruction in this case after having failed to object
to it at the trial. Nor is the question whether, as an [*8] original proposition,
the instruction was so glaringly wrong as to call for an exercise of this
Court's power under Rule 52 (b) to notice "plain error." Rather the question
is whether, after reversing for fundamental error as to the instruction on
willfulness in the Block case, and after denying the Government's petition
for rehearing there, this Court can now affirm in this case on the same
instruction in the identical factual setting. We submit that affirmance of the
present judgment in these circumstances would amount to a discrimination
so unjustifiable as to infringe the Due Process clause of the Fifth
Amendment. Boiling v. Sharpe, 347 U. S. 497, 499.
V. We therefore respectfully suggest, pursuant to the third paragraph of
Rule 23 of this Court, that it would be eminently appropriate for this case to
be heard in banc, to the end that the important questions of federal criminal
law which are left in doubt by conflicting decisions of different divisions of
this Court may be authoritatively resolved.
VI. In the event that a rehearing is granted, appellant desires to reargue
two additional questions, which are here summarily stated in order not
further to lengthen this petition:
1. The admissibility of the Kelley Blue Books (Specifications of Error
Nos. 2 and 6). Very briefly, the opinion of the Court (slip opinion, pp. 2-3)
proceeds on grounds which suggest that an insufficient foundation was laid
for the admission of these books, whereas the trial judge, in explicit and
unequivoval fashion, based his ruling entirely on materiality. (R. 1521.)
[*9] We believe that, in their setting, the Blue Books had substantial
probative value. For 1948, the conviction year, almost all of the used car
sales were made to Joe Angel; the Blue Book valuations for the cars sold to
him in that year aggregated $35,785, as against $39,245 which Angel
claims he paid, and the $34,720 shown on appellant's invoices and records.
(Def. Ex. AB for id., p. 4, R. 1789.)2
It follows that the exclusion of the Blue Books on the ground of
materiality alone amounted to prejudicial error. Moreover, we submit, when
a trial judge states (R. 1521), "I will protect the record on that and state that
the basis of the ruling has nothing to do with the laying of a foundation as
to any document whatsoever," it is not open to an Appellate Court to sustain
his ruling on any ground going to a lack of foundation.
2. The request for examination of the Grand Jury minutes (Specifications
of Error Nos. 8 and 9). The Court's opinion on this point (slip opinion, pp.
4-6) proceeds on two grounds, neither of which we submit is tenable on
closer analysis.
 Insofar as the opinion suggests that the trial judge was not required to
inspect the minutes himself in the absence of a specific request that he do
so, the ruling is contrary to what appears to be settled practice elsewhere.
See United States v. Cotter, 60 F. 2d 689, 692 (CCA. 2), where, although
the request was [*10] for a general inspection of grand jury minutes by
counsel, which was refused, the judge "went over them himself, decided
what parts were relevant, and laid so much open." 2a
2The Blue Book calls for reduction of the price by the estimate of
reconditioning cost, but appellant sold used cars at wholesale as is,
without reconditioning. (R. 1367-1369.)
Insofar as this Court's opinion holds that a defendant may neither see nor
request the trial judge to examine grand jury minutes for purposes of
impeachment until he can first show that those minutes will be impeaching,
it establishes a prerequisite for examination utterly impossible of
attainment; for, plainly, such a requirement cannot reasonably be imposed
in respect of an unknown document. United States v. Krulewitch, 145 F. 2d
76, 79; United States v. Cohen, 145 F. 2d 82, 92; both CCA. 2.
 Section 171. Sequel to the rehearing in the Herzog case.
— The consequence of the foregoing document was a rehearing in banc,
limited to the "conflict or apparent conflict" with Block on the Rule 52 (b)
issue.3 But, while a majority of the Ninth Circuit after reargument
repudiated the division's original reading of that Rule, thus lining up with
every other circuit that had ever considered the point, the holding was that
there would be a different result in Herzog than in Block. Judge Stephens
dissented on the ground that there was no power to limit the rehearing in
banc to a particular issue. The reader is invited to, and should, read the
opinions on rehearing, which are reported at 235 F. 2d 664.
21A recent Second Circuit case approved the application of the same
practice to F.B.I, reports. United States v. Lebron, 222 F. 2d 531, 536-
537, certiorari denied, 350 U. S. [876] (Oct. 24. 1955; No. 139, Misc.)
3Both the division and the full Court limited the reargument to
"questions pertinent to the conflict or apparent conflict between the
 decision herein rendered on October 11, 1955, and the decision of this
Court in Block v. United States, 221 F. 2d 786, rehearing denied 223 F.
2d 297."
Certiorari was sought, but denied, Mr. Justice Douglas dissenting.4 He
had earlier, as Circuit Justice, granted bail pending appeal.5 Thus the result
of the case was, that whereas the Ninth Circuit had originally denied bail
pending appeal, which at that time meant that no substantial question was
involved,6 it had the case under consideration for over 13 months, in the
course of which it repudiated the basis on which its original affirmance of
the judgment had been rested. Moreover, when the substantive issue
involved—the definition of wilfulness in tax cases—again arose, the Ninth
Circuit concluded that the Herzog instruction was wrong, and reversed.7 It
should not therefore occasion surprise that even after four years some
residual bitterness still remains whenever the Herzog case comes to mind.
The law as to some of the other issues raised and involved is still
nebulous. Just what rights there are to inspection of Grand Jury minutes in
anyone apart from the United States Attorney and his assistants has not yet
been completely clarified by the Supreme Court's later pronouncements in
this area.8 All that can be said is that the Second Circuit still insists that trial
judges must themselves make the very kind of personal inspection of those
minutes that the trial judge in the Herzog case refused to make, a refusal in
which he was sustained by the Ninth Circuit.9
4 352 U. S. 844.
5 99 L. ed. 1299, 75 S. Ct. 349.
8As originally adopted, Rule 46 (a) (2), F. R. Crim. P., permitted bail
pending appeal or certiorari "only if it appears that the case involves a
substantial question which should be determined by the appellate court."
It was in effect in that form when bail was granted on February 11, 1955
(supra, note 5).
On April 9, 1956, the Rule was changed to substitute for the quoted
clause the words "unless it appears that the appeal is frivolous or taken
for delay."
 7Forster v. United States, 237 F. 2d 617 (CA. 9). Accord, United
States v. Palermo, 259 F. 2d 872 (CA. 3).
8
United States v. Procter ir Gamble, 356 U. S. 677; Pittsburgh Plate
Glass Co. v. United States, 360 U. S. 395.
9 United States v. Zborowski, 271 F. 2d 661 (CA. 2); United States v.
McKeever, 271 F. 2d 669 (CA. 2); United States v. Spangelet, 258 F. 2d
338 (C.A. 2). Compare the Ninth Circuit's wholly different concept in the
first Herzog opinion, 226 F. 2d at 566-567.
Two of the judges who heard the Herzog case reargued in banc retired
before the decision was announced, but participated therein. Of course
counsel were aware of the additional issue thus presented, which the
Supreme Court did not decide for another four years in United States v.
American-Foreign S.S. Co.10 But there the judge who retired pendente lite
cast the deciding vote, whereas in Herzog there were ample votes to sustain
the judgment without the votes of the judges who retired. Hence it was not
deemed worthwhile to include the point in the petition for certiorari.
The same was true of the question raised in Judge Stephens' opinion, viz.,
whether an in banc rehearing could properly narrow the issues, or whether
the court on such rehearing was obliged to hear the entire case. It may well
be that, since a rehearing of any kind by a Court of Appeals is, like review
by certiorari in the Supreme Court, a matter of grace—which the original
appeal to the Court of Appeals of course is not—the questions to be heard
on rehearing may properly be limited. But, since even reversal on that issue
would not have given any assurance whatever of a different result—and
there was much soul-searching on the question, with full articulation of the
factors involved—that question was not included in the petition for
certiorari.

Section 172. Example of a successful petition for rehearing in

the Supreme Court of the United States.
—As in the example of the Court of Appeals petition for rehearing just
discussed, the document set forth in the next section addresses itself to "the
very kernel of the case," and in particular, to the ground on which the
original decisions rested, viz., that there was no need, in two cases
involving the right to try civilian women by court-martial in time of peace,
to consider the scope of the clause which gives Congress the power "To
make Rules for the Government and Regulation of the land and naval
Forces." 11
That omission drew a sharp comment from the Justice who reserved his
vote: "The plain inference from this is that the Court is not prepared to
support the constitutional basis upon which the Covert and Smith courts-
martial were instituted and the convictions were secured." 12 Or, less
elegantly put, there were lacking five votes to hold that civilian dependents
could be included within "land and naval Forces."
10 363 U. S. 685.
11 Kinsella v. Krueger, 351 U. S. 470, 476; Clause 14 of Section 8 of
Article I of the Constitution is quoted in the text.
In counsel's view, there was room for a difference of opinion as to
whether the quoted portion of the Constitution—Clause 14 of Section 8,
Article I—could embrace persons without any military status, particularly
since there had never been any doubt of the power to try by court-martial
civilians who in time of war were with the armies "in the field." 13 But
whatever the scope of Clause 14, there was in counsel's view no doubt that
Clause 14 could not thus be brushed aside as irrelevant and unnecessary to
be considered.
Which, stripping away every vestige of anything-less-thanutterly-
essential, counsel proceeded to do.
As before, the reader is requested to examine the opinions concerned—
Kinsella v. Krueger, 351 U. S. 470, and Reid v. Covert, 351 U. S. 487—as
indispensable background for an understanding of the document which
follows.

Section 173. The successful petition for rehearing in Reid v.

Covert.
—Only the cover and the index have been omitted from the Covert-
Krueger petition for rehearing that is here set out.
 On Appeal from the United States District Court for the
District of Columbia

12 Kinsella v. Krueger, 351 U. S. at 481, per Frankfurter, J.

13 Article 2 (10) of the Uniform Code of Military Justice, now 10
U.S.C. §802(10); Winthrop, Military Law and Precedents (2d ed. 1896)
*134-*137 (pp. 99-101, 1920 reprint); and see references cited in note
18, below, p. 442.
 Now come CLARICE B. COVERT, Appellee in No. 701, and WALTER
KRUEGER, Respondent in No. 713, and respectfully pray the Court to grant
rehearings in these causes.
[*2] Mrs. Covert and Mrs. Smith, the two civilian women whose fate is
here in issue, were tried by court-martial, pursuant to Article 2 (11) of the
Uniform Code of Military Justice, and had their convictions successively
reviewed by Boards of Review in the Offices of the Judge Advocate
General of the Air Force and of the Army, respectively, and then by the
Court of Military Appeals. The latter tribunal held, while the present cases
were under advisement here, that "Article 2(11) of the Code is a valid
exercise of Congressional power granted by the Constitution 'to make Rules
for the Government and Regulation of the land and naval Forces.'" United
States v. St. Clair, 7 USCMA 82, 83, 21 CMR 208, 209, decided May 25,
1956. But this Court declares (slip opinion, No. 713, pp. 6-7) that there is
no need to examine the power of Congress under that clause of the
Constitution.
The concept of presenting Hamlet without the Prince of Denmark
doubtless has fascination. But just as the Melancholy Dane cannot, despite
heroic efforts, be completely exorcised from the play, just as he constantly
flits back and forth into the action regardless of nomenclature, so in these
cases, where the results were reached after ostensible rejection of whatever
powers the Constitution has conferred upon Congress to govern the armed
forces, a reading of the Court's opinions makes obvious that military
considerations were necessarily relied upon to uphold the court-martial
proceedings here under review.
A. Thus it is said (slip opinion, No. 713, pp. 7-8) that the United States
must maintain American forces in many foreign countries; that "the lives of
military [*3] and civilian personnel alike are geared to the local military
organization"; and that by enacting Article 2 (11) "Congress has provided
that all shall be subject to the same system of justice and that the military
commander who bears full responsibility for the care and safety of those
civilians attached to his command shall also have authority to regulate
their conduct." [Italics added.] These, without question, are purely military
considerations relevant to—and relevant only to—the power "To make
Rules for the Government and Regulation of the land and naval Forces."
B. It is said (slip opinion, No. 713, pp. 10-11) that "this case presents no
problem of * * * the power of Congress to provide for trial of Americans
sojourning, touring, or temporarily residing abroad." But In re Ross, 140 U.
S. 453, on which the jurisdiction in the present cases is rested, involved the
trial by an American consular court of a British subject who was
temporarily in Japan only while the American ship in whose crew he served
was lying at anchor in Yokohama harbor. See 140 U. S. at 456-457, 470-
475. The difference between Ross's situation and that of the two women
involved here is that they were abroad for a far less temporary stay, the
exact length of which was dependent on their respective husbands' tours of
military duty, and that their American links were far less tenuous than those
of Ross. Again, the governing consideration is their relationship to the
American armed force of which their husbands were members.
C. In No. 701, the Court's opinion (pp. 4-5) speaks of "military
jurisdiction," of "military prisoners," and cites decisions of "military courts"
in considering whether Mrs. Covert may be retried by a courtmartial within
the District of Columbia.
[*4] Thus, the Court sustains, in these two cases, an obvious exercise of
the power "To make Rules for the Government and Regulation of the land
and naval Forces" while disclaiming all inquiry into the extent of that
power. And for the first time in the Court's history, it approves the trial of
civilian women by court-martial in time of peace.
II
The Court says (slip opinion, No. 713, p. 8) that "The choice among
different types of legislative tribunals is peculiarly within the power of
Congress," citing Ex parte Bakelite Corp., 279 U. S. 438, 451. But to deal
with these cases in terms of legislative choice is to rest on a demonstrable
fiction, for it is the incontrovertible fact that Congress never considered that
it was being faced with any "choice among different types of legislative
tribunals."
The legislative materials reflect no awareness whatever of any
constitutional problem. They show without question that, in 1916 when it
first extended court-martial jurisdiction over civilians accompanying the
armies in time of peace in AW 2 (d), in 1920 when it reenacted that
provision, in 1948 when it permitted AW 2 (d) to survive the amendment to
the other Articles of War passed in that year, and again in 1949-1950, when
it extended the same provision to all of the armed forces as Article 2 (11),
UCMJ, Congress never considered the constitutionality of that jurisdiction
under any clause of the Constitution,1 much [*5] less that it made a
deliberate selection among classes of available tribunals. The same
legislative materials also show that, in 1916, in 1920, in 1948, and again in
1949 and 1950, there was simply no mention of courts other than courts-
martial for the trial of accompanying civilians; that at no time in the
hearings or on the floor of either house was there even a whisper about
consular courts; and that In re Ross, 140 U. S. 453, was not cited by anyone,
anywhere, at any time. These omissions, it is proper to add, should hardly
occasion surprise, inasmuch as the traditional view regarded a court-martial,
not as a species of legislative court, but as "a purely executive agency
designed for military uses." Winthrop, Military Law and Precedents
(2d ed. 1896) *54 [1920 reprint, p. 49].
The Court's reference to Congressional choice in connection with Article
2 (11) is the more unreal when it is borne in mind that the Uniform Code of
Military Justice in the House was under the unchallenged control of that
body's Committee on Armed Services; that extensive hearings were had
thereon by the Senate Committee on Armed Services; that a proposal
thereafter to take the Code from the calendar for reference to the Senate
Committee on the Judiciary was opposed by the Chairman of the Armed
Forces Committee on the ground that the Code was essentially a
reincorporation of existing law and that it was "an extremely important step
toward unification [of the armed services] and provides for reforms in the
court-martial [*6] system which should be enacted as soon as possible" (96
Cong. Rec. 1366-1368); and that the motion for change of reference was
defeated
(96 Cong. Rec. 1412-1417).
To the extent, therefore, that there was any expression of preference, the
choice was to consider the Code under the aegis of the Committee most
conversant with military problems, which dealt with the matter on the
footing of continuing a military policy already on the statute book, and
which in consequence would hardly be expected to weigh competing
considerations.
1 "The Code is a uniform system of legal procedure, applicable beyond
any constitutional question to all servicemen stationed abroad. It was
adopted by Congress only after an exhaustive study of several years
duration and the consultation of acknowledged authorities in the fields of
constitutional and military law." Slip opinion, No. 713, pp. 8-9, citing the
1949 Hearings before a Subcommittee of the House Committee on
Armed Services.
No reference to any specific discussion of the constitutionality of
Article 2 (11) is made in the Court's opinion—and none, it is submitted,
can be made: There was no such discussion.
In short, insofar as one can properly attribute to Congress any intent with
respect to a problem of which it was not really aware, that intent was to
proceed under its power to govern the armed forces and not under such
powers as it may have had to create a particular type of legislative court
from among those available. The latter choice it did not choose to make.
Ill
Nowhere in the Court's opinions is there any mention of the specific
source of constitutional power on which the present extraordinary court-
martial jurisdiction over civilians is rested.
 Inquiry into the scope of the power to govern and regulate the armed
forces is expressly avoided (slip opinion, No. 713, pp. 6-7). The war power
—Article I, Section 8, Clause 11—is not mentioned. The now exploded
notion that the "cases arising in the land or naval forces" clause of the Fifth
Amendment is in itself a source of military jurisdiction (Toth v. Quarles,
350 U. S. 11, 14) is not sought to be revived. The treaty power is not relied
on; the Court says [*7] (id., p. 11) that "No question of the legal relation
between treaties and the Constitution is presented." And while there is a
reference (id., p. 5) to legislative courts and the line of cases beginning with
American Ins. Co. v. Canter, 1 Pet. 511, the power considered in those cases
was that granted by Article IV, Section 3, to "make all needful Rules and
Regulations respecting the Territory * * * belonging to the United States," a
power that is obviously irrelevant when the United States is on foreign soil
with the consent of the foreign sovereign—the situation in both cases here.
The Court does not point to any clause or phrase of the Constitution that
confers on the Congress power to withdraw from American citizens seeking
protection against the acts of American officials not only the guarantee of
trial by jury (Article III, Section 2; Sixth Amendment) and of indictment by
grand jury (Fifth Amendment), but also the Sixth Amendment's guarantee
of confrontation (United States v. Sutton, 3 USCMA 220, 11 CMR 220) and
the Eighth Amendment's guarantee of the right to bail (Dig. Op. JAG, 1912,
p. 481, fIC)—and this under a system of procedure formulated by the
President pursuant to authority delegated to him in his capacity as
Commander-in-Chief. Article 36, UCMJ (50 U.S.C. §611); Manual for
Courts-Martial, US, 1951 (Ex. Order 10214, 16 Fed. Reg. 1303). It is one
matter to draw on the President's inherent power as Commander-in-Chief to
discipline the armed forces (Swaim v. United States, 165 U. S. 553, 555-
558); it is quite another to rest on that source when dealing with the rights
of American civilians. Yet it is the Manual prescribed by the President by
which the criminal liability of both women has been or will be determined,
as the military opinions in their [*8] cases clearly show (No. 701, R. 12-
121; No. 713, R. 23-94). Otherwise stated, the test of whether their
respective mental states negatived legal responsibility—the sole contested
issue before the military authorities in both cases—has been laid down by
the President— and only by the President.
 What is there in the Constitution that endows the Chief Executive with
such untrammelled power over the liberty of two civilians?
To say that the Court's opinions raise more constitutional questions than
they resolve is therefore not in any sense hyperbole.
IV
In No. 713, the Court could say (slip opinion, p. 10), "We note that this
case presents no problem of the jurisdiction of a military court-martial
sitting within the territorial limits of the United States * * *". But that
precise problem is squarely presented in No. 701, the case of Mrs. Covert,
who was being held for retrial by a general court-martial of the Air Force at
Boiling Air Force Base within the District of Columbia.
In her case, the Court holds that a jurisdiction carefully circumscribed to
persons accompanying the armed forces "without the continental limits of
the United States" (Art. 2 (11), UCMJ) is nonetheless applicable to Mrs.
Covert within those limits, because (slip opinion, No. 701, p. 5) "military
jurisdiction, once validly attached, continues until final disposition of the
case." Mrs. Covert has never questioned, at any stage of the present case,
the proposition that a rehearing is a continuation of the original proceeding.
[*9] But the quoted holding makes the Court more militarist than the
military, without a single military precedent to support its conclusion; for
the military rulings, from the Civil War down through the Korean conflict,
are uniformly to the effect that any separation of the individual from
military status by affirmative act of Government, at any stage of the
proceedings, terminates military jurisdiction over him.2 Since discharge,
muster out, or release to inactive duty has that effect on a soldier, because it
changes him from soldier back to civilian, then surely the Government's act
of removing a serviceman's dependent wife from without back to within the
continental limits of the United States should similarly terminate an
amenability to trial by court-martial that is geographically restricted by the
Code to civilians overseas.
2Dig. Op. JAG, 1912, p. 514, f VIII I 1 (rulings from 1862 on);
United States v. Sippel, 4 USCMA 50, 53, 15 CMR 50, 53 (1954); and
see the rulings collected and discussed in appellee's brief at pp. 23-27.
 Mrs. Covert's military status under the Code was dependent on her
accompanying the armed forces overseas. When the Government brought
her back to the United States it terminated that military status. And certainly
her trial by court-martial within the United States is not even sought to be
constitutionally justified by any of the considerations set forth in the Court's
opinion in No. 713. Nowhere there is it suggested that Ross could have
been tried in this country by the consul before whom he was haled in Japan.
If, however, the Court's ruling on this point stands, then some time this
fall or winter—because the Air Force is determined to retry Mrs. Covert,
almost as [*10] though its military honor were somehow involved8—there
will be presented the spectacle, frightening in its forebodings for the future,
of a civilian woman on trial before a military tribunal in the District of
Columbia. This will be the first such trial since that of Mrs. Surratt—which
is hardly a pretty precedent, or one of which any American can be proud.
See, e.g., Moore, The Case of Mrs. Surratt (1954).
V
But there is an issue now presented by these cases that far transcends the
future of the two women immediately involved, and which is infinitely
more disturbing in its implications than any of the serious constitutional
questions already canvassed.
That issue concerns the Court's adjudicatory procedures in these cases.
Both cases were placed on the summary calendar (J. Sup. Ct., Oct. T.
1955, p. 173), and, as the references in the margin show, both were prepared
for argument on an accelerated schedule that cut nearly in half the time for
briefs allowed under the new Rules.4
[*11] The argument itself came late in the Term. Indeed, not only was
that argument the last on the calendar, on May 3 (J. Sup. Ct., Oct. T. 1955,
pp. 230-231)—but it took place very late on that day, concluding long after
the usual adjournment hour.5 The question whether military jurisdiction
over Mrs. Covert continued so as to subject her to retrial by court-martial in
the United States was not discussed orally by either side, and on the basic
issue that is considered by the Court in Mrs. Smith's case, losing counsel
was asked only three questions, one of which inquired as to the location of a
treaty provision that had been mentioned orally.6 To the extent, therefore,
that there is "a tradition of the Supreme Court as a tribunal not designed as
a dozing audience for the reading of soliloquies, but as a questioning body,
utilizing oral arguments as a means for exposing the difficulties of a case
with a view to meeting them," the lateness of the hour perceptibly impaired
the probing process.
3 The Solicitor General opposed her motion to stay the mandate
pending the Court's disposition of the present Petition for Rehearing
unless she would consent to subject herself to further psychiatric probing
at St. Elizabeth's during the summer. Otherwise stated, the Government
offered her a choice between confinement in jail and confinement in an
asylum. On June 18, 1956, however, Mr. Justice Clark granted her
motion and stayed the mandate.
4 There was no printed record below in either case. The Clerk's files
show that he transmitted the printed records to counsel for the parties on
March 21 and 22. Under Rules 41 (1) , 41 (2) , and 43 (1), argument
should therefore normally have been held some 75 days later. In fact, it
took place on May 3, an interval of only 42 days.
Most serious of all, however, is the circumstance that the Court's
opinions were announced before the three dissenting Justices had had time
to formulate their views, and before another Justice had even been able to
reach a decision. It cannot be said that a further period of waiting would
have been without effect. Only recently, a Justice whose experience
spanned twelve full Terms declared, in his posthumous declaration of
constitutional faith, that "not infrequently the detailed study required to
write an opinion, or the persuasiveness of an opinion or dissent, will lead to
a [*12] change of a vote or even to a change of result." Jackson, The
Supreme Court in the American System of Government, p. 15.
These petitioners for rehearing, therefore, may justly complain that their
contentions did not receive as full consideration as if their causes had been
argued a few months earlier. And they cannot forbear to remark that there
appears to be no compelling reason of judicial administration why all of the
Term's cases must be disposed of within the Term, or why the Court cannot
return to its former practice of holding argued cases over the summer for
disposition at the following Term.7 Otherwise there is added to the inherent
hazards of litigation the further danger of an inequality of treatment as
among litigants that rests only on the happenstance of the position of the
case on the calendar for the particular Term.
5 The argument ended at 5:40 P.M. (Ward & Paul Transcript, p. 64),
whereas the traditional time for adjournment, now codified in Rule 4(1),
is of course 4:30 P.M.
6 Ward 8c Paul Transcript, pp. 52, 54.
7As late as the 1929 Term, the Court decided eight cases that had been
argued during the 1928 Term. Gonzales v. Roman Catholic Archbishop,
280 U. S. 1; FTC v. Klesner, 280 U. S. 19; Sanitary Refrig. Co. v.
Winters, 280 U. S. 30; Williams v. Riley, 280 U. S. 78; Bekins Van Lines
v. Riley, 280 U. S. 80; Grant v. Leach ir Co., 280 U. S. 351; Surplus
Trading Co. v. Cook, 281 U. S. 647; Wheeler Lumber Co. v. United
States, 281 U. S. 572 (argued April 25, 1929; certificate dismissed May
27, 1929; restored to docket for reconsideration June 3, 1929; decided
May 26, 1930) .
But, if the present practice is to be continued, then, assuredly, reargument
is called for in these cases. True, "Rehearings are not a healthy step in the
judicial process; surely they ought not to be deemed normal procedure."
Western Pacific Railroad Case, 345 U. S. 247, 270. But certainly the issues
that are involved in the present causes would seem to have far more public
importance than those that were under consideration in the last two
instances wherein this [*13] Court granted a rehearing after opinions had
already been published. Elgin, J. & E. R. Co. v. Burley, 325 U. S. 711,
rehearing granted, 326 U. S. 801, second opinions, 327 U. S. 661; Graver
Mfg. Co. v. Linde Co., 336 U. S. 271, rehearing granted, 337 U. S. 910,
second opinions, 339 U. S. 605.
Least of all in the present cases, which will have such far-reaching
consequences for so many individuals, and which plainly concern grave
national policies as well, can the Court afford to substitute for the patient
maturing of the judicial process a method of disposing of causes that all too
obviously involves decision by deadline.
VI
This Petition for Rehearing should be granted, and both cases should be
set down for reargument on the regular calendar.
 Section 174. Sequel to the rehearing in the Covert and Krueger
cases.
—Supreme Court Rule 58 (1) states that "A petition for rehearing * * *
will not be granted, except at the instance of a justice who concurred in the
judgment or decision and with the concurrence of a majority of the court."
Inasmuch as there were five votes against the petitioners, and new
members of the Court, as a matter of settled practice, do not vote on
petitions to rehear cases in which they did not originally participate, success
for this particular petition depended on at least one of the former majority
voting to rehear.
Well, the petition for rehearing was granted, Mr. Justice Harlan having
moved over, for reasons which he subsequently set forth in the reports, 354
U. S. at 65-67. The student of the judicial process should examine those
comments in the light of the petition for rehearing, bearing in mind always
that what is urged in chambers and in the conference by other judges may
well be more persuasive ultimately than the contentions a licked lawyer has
assembled in print in a petition for rehearing.
The sequel of the rehearing in Covert-Krueger was happier than the
sequel in Herzog. Almost a full year after the first opinions—364 days to be
exact—those opinions were "withdrawn," and new ones filed. A majority of
the Court agreed in holding that a court-martial could not constitutionally
try civilian dependents for capital offenses in time of peace; thus both
women went free. Reid v. Covert, 354 U. S. 1.
There was no opinion of the Court, so there was left open for future
determination the question of court-martial jurisdiction over civilian
dependents committing non-capital offenses, and over civilian employees,
whether committing capital or noncapital offenses.
Those subsidiary questions were decided two and a half years later. In
Kinsella v. Singleton,14, the Court held that there was no military
jurisdiction over civilian dependents committing non-capital offenses; in
Grisham v. Hagan 15 that there was similarly no military jurisdiction over
civilian employees committing capital offenses; and in McElroy v.
Guagliardo 16 that civilian employees committing non-capital offenses were
likewise triable only in civil courts.
"It was a long, hard fight, Mom, but we won."
Paradoxically enough, these holdings involved no new departure, but
instead marked a return to the classic views of an older generation of
military lawyers. Colonel William Winthrop had laid it down in 1896, in
italics, that "a statute cannot be framed by which a civilian can lawfully be
made amenable to the military jurisdiction in time of peace." 17 And as late
as 1912, The Judge Advocate General of the Army had proclaimed the
same views "for the information of the Army and Organized Militia of the
United States." 18
14 361 U. S. 234.
15 361 U. S. 278.
16 361 U. S. 281.
"Winthrop, Military Law and Precedents (2d ed. 1896) *146 (p. 107,
1920 reprint).
18
See Digest of Opinions of The Judge Advocate General of the Army
(1912) pp. 151-152, 513; id. (1901) 56-58; id. (1895) pp. 75-77; id.
(1880) pp. 48-49.
The quotation in the text is from p. 3 of the 1912 edition.
 CHAPTER XIV

ANNOTATED CRITIQUE OF AN ORAL

ARGUMENT

Section 175. Purpose of this chapter.

—In order to relate some of the admonitions in the Third Part of the book
to an actual argument in a specific case, I have selected the transcript of the
oral remarks in a reasonably uncomplicated but still interesting controversy.
By way of preliminary, there is set forth the background out of which the
case arose, with full citations to the opinions rendered—and if the reader is
to obtain any benefit from this chapter, he had better read those opinions
before he turns to the transcript. Next comes the argument itself, to which
the only additions are footnote references to the matters cited or quoted by
counsel. That is followed by an analysis of the forensic problems each
counsel faced, and how each one solved or attempted to solve them. Finally,
to complete the story, the result of the argument is given, and the
subsequent decisions on the point are briefly discussed.

Section 176. Background out of which case arose.

—In the late 1940's and early 1950's, the Department of Justice embarked
on a series of intensive Grand Jury investigations. During the early 1950's,
also, the Kefauver Committee was extremely active. Many witnesses called
in both of those investigations claimed their privilege against self-
incrimination. When they thereafter were ordered to testify and refused,
contempt proceedings were instituted against them, and, in the course of
defending those proceedings, a good deal of law was made, as the citations
in the note indicate.1
1See, in addition to the cases cited elsewhere in this chapter, Poretto
v. United States, 196 F. 2d 392 (C.A. 5); Marcello v. United States, 196
F. 2d 437 (C.A. 5); United States v. Costello, 198 F. 2d 200 (C.A. 2),
certiorari denied, 344 U. S. 874; Aiuppa v. United States, 201 F. 2d 287
(CA. 6); and United States v. Doto, 205 F. 2d 416 (CA. 2), all of which
 arose out of the Kefauver Committee's activities; United States v.
Girgenti, 197 F. 2d 218 (CA. 3), and United States v. Coffey, 198 F. 2d
438 (C.A. 3), which grew out of the same Grand Jury investigation as the
principal case discussed in the present chapter; and United States v.
Rosen, 174 F. 2d 187 (C.A. 2), certiorari denied, 338 U. S. 851;
Alexander v. United States, 181 F. 2d 632 (C.A. 9), certiorari denied, 340
U. S. 920; and Estes v. Potter, 183 F. 3d 865 (C.A. 5), certiorari denied,
340 U. S. 920; Brunner v. United States, 343 U. S. 918, reversing 190 F.
2d 167 (C.A. 9), a group of cases arising out of Grand Jury inquiries into
Communist activity.
For present purposes, the first important Supreme Court decision was
{Patricia) Blau v. United States,2 which held that a witness was entitled to
claim the privilege in respect of answers to questions which, while
innocuous on their face, might none the less supply needed links in the case
against the witness. And Patricia Blau's case was followed by Hoffman v.
United States* wherein the Court spelled out the governing principles in
detail, reversing the Third Circuit in the process.
Greenberg v. United States is the subject of this chapter. It was decided
by the Third Circuit subsequent to, and on the same reasoning as, its
Hoffman decision.4 After certiorari had been granted in Hoffman,5
Greenberg likewise sought review, but his petition was "held" pending the
determination of the earlier case.6 A week after Hoffman was decided, the
Court granted certiorari in Greenberg with this notation: "The judgment of
the Court of Appeals is vacated and the case is remanded to that court for
reconsideration in the light of Hoffman v. United States, * * * decided May
28, 1951." 7
On such reconsideration, the Third Circuit again sustained Greenberg's
conviction, holding that his case differed perceptibly from that of Hoffman,
wherein it had just been reversed.8 (It is a wholly accurate paraphrase to say
that "A court convinced against its will is of the same opinion still.") Again
Greenberg petitioned for certiorari—see Section 85 for a memorandum
filed in that connection—and again his petition was granted;9 this time it
was set for argument on the summary docket, with an allowance of thirty
minutes for each side.10
District Court decisions have not been listed.
 2 340 U. S. 159.
3 341 U.S. 479.
4 187 F. 2d 35.
5 340 U. S. 946.
6 For the Supreme Court's practice of deferring consideration of
petitions for certiorari, see Stern and Gressman, Supreme Court Practice
(2d ed. 1954) ch. IV (C), p. 154; Robertson and Kirkham, Jurisdiction of
the Supreme Court of the United States (Kurland and Wolfson ed. 1951)
§319, pp. 621-624.
7 341 U. S. 944.
8 192 F. 2d 201.
9 342 U. S. 917.
That argument follows. It is suggested that, by way of preliminary, the
following opinions be first read in the order named: (1) Patricia Blau, 340
U. S. 159; (2) Hoffman below, 185 F. 2d 617; (3) Hoffman in the Supreme
Court, 341 U. S. 479; (4) first Greenberg below, 187 F. 2d 35; (5) second
Greenberg below, 192 F. 2d 201.

Section 177. The oral argument in Greenberg v. United States.

IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1951
No. 461

IRVING GREENBERG, Petitioner,

v.

THE UNITED STATES OF AMERICA

Washington, D. C,
Wednesday, April 2, 1952.
 The above-entitled cause came on for oral argument at 1:05 P.M.
PRESENT: Chief Justice Vinson and Associates Justices Reed, Black,
Douglas, Jackson, Burton, Clark, and Minton.
APPEARANCES: On behalf of the United States of America, M. H.
Goldschein, Esq., Special Assistant to the Attorney General; on behalf of
Petitioner, Frederick Bernays Wiener, Esq.
PROCEEDINGS
THE CHIEF JUSTICE: Argument in No. 461, Greenberg against The United
States of America.

ARGUMENT ON BEHALF OF THE PETITIONER

By Mr. Wiener

MR. WIENER: If the Court please, this is the second writ of certiorari
which your Honors have granted in this case. Three questions are involved.
10Now, since the effective date of the 1954 Rules, the summary
calendar. Supreme Court Rule 44 (3).
The first is a continuing conflict of decision between the court below and
this Court as to the proper scope of the constitutional privilege against self-
incrimination.11
The second question is whether the Government may properly prosecute
an individual while at the same time denying him the ability to defend—
whether, when the Government prosecutes an individual for the contempt
involved in refusing to answer questions claimed by him to be self-
incriminating and he seeks to prove their incriminating nature through
papers in the possession of the Government and normally privileged, the
Government may continue to assert its privilege while continuing the
prosecution.
The third question concerns the, we think, material variances between
what happened at the trial and what is recited in the formal judgment of
conviction.
If the Court please, this case involved the same Grand Jury and the same
prosecutor as were involved in the Hoffman case decided at the last Term.12
The background of the case is the prosecutor's announcements of his
purpose in the public press. That becomes material because the petitioner
stated, in claiming his privilege, that he feared the questions to be
incriminating in part because of what he read in the papers. These
newspaper accounts were introduced at the trial, and not afterward as in the
Hoffman case.13
This is what the prosecutor was reported as saying: "Even though there
are no Federal laws regarding numbers, slot machines and other rackets, the
probers will strike at such rings through the Federal revenue and conspiracy
laws."
Mr. Goldschein, who is now here representing the Government, was the
prosecutor in charge of the investigation. He "stressed the importance of
'conspiracy.'" Further, "A Justice Department spokesman said that as each
witness is called, agents of the Bureau of Internal Revenue are prepared to
produce income tax reports so that the jury can check his testimony.
"Income tax violations would permit the Government to strike indirectly
at racketeers whose activities are not covered by Federal criminal statutes."
14

During the pendency of this investigation the petitioner refused to answer

certain questions before the Grand Jury, and the basic question as to which
he claimed his privilege was, "Are you in the numbers business now?"
After I have stated the questions, I will expound the claim of privilege that
was made.
11
This was a somewhat sarcastic reference to the rule that a conflict of
decision between circuits justifies the granting of certiorari. Supreme
Court Rule 19 (1) (b).
12 341 U. S. 479.
13See 185 F. 2d at 621 and 341 U. S. at 483 and 489. "Record, pp. 196a,
197a.
The second question revolves around the use of his telephone. He was
asked, "What business do you use your telephone for?" He said, "Not for
my lawful business."
"Do you use it in your real estate business?" "No."
 "Do you use it in any other business?" "Yes."
"What other business do you use it for?" "Not for my lawful business,"
he said, and he refused to answer further, claiming his privilege.
The third question involved is the identification question. He was asked,
"Do you know any numbers writers, people in the numbers business,
around your place of business?" He said, "Yes."
Question: "Who?" And as to that he claimed his privilege.
When he persisted in refusal, the Grand Jury presented him for contempt
and he was tried.
If the Court please, the claim of privilege was very specific. He claimed
that if he answered these questions, he would be incriminating himself
under the Federal criminal law, and he cited the statutes; and he also stated
that his fear of self-incrimination was based on the advice of counsel, on his
own knowledge of what the answers would be, and on what he had read in
the newspapers. His claim was very specific. It fills a number of complete
pages of the record.
MR. JUSTICE REED: DO you claim the numbers racket is a Federal Crime?
MR. WIENER: No. We do not claim that for a minute. I will explain in a
minute why the admission that he is in the numbers business is
incriminating under Federal law.
MR. JUSTICE REED: Some of these questions go beyond the numbers
business.
MR. WIENER: The "Who" question did. The telephone question didn't go
beyond that.
After he was presented by the Grand Jury he was tried for contempt. At
the trial he offered to prove that he, himself, was under investigation, that
there was a definite plan on the part of the Government to show that he and
other witnesses were guilty of violating the Federal tax law, and that it was
a part of the plan of the prosecutor, once he answered these questions, to
prosecute him or recommend prosecution for violation of Federal law.
He introduced the newspapers and in further substantiation of his
contention that these answers would be incriminating under Federal law, he
subpoenaed the prosecutor's papers, and he moved to examine the Grand
Jury minutes in order to show that these questions in their setting were
incriminating and that, if he answered them, Mr. Goldschein would initiate
prosecution.
The District Judge sustained the objection to the offer of proof. He
refused the subpoena of the prosecutor's files and he denied the motion for
the inspection of the Grand Jury minutes.
With his defense withheld the petitioner was found guilty and was
sentenced to five months imprisonment and held, pending appeal, in the
rather high bail of $10,000.
The conviction was affirmed by the Third Circuit.15 Your Honors granted
certiorari last June, vacated the judgment, and remanded the case for
reconsideration in the light of the Hoffman decision.16 The court below
reconsidered, reaffirmed,17 and a second writ of certiorari brings the case
here.18
As to the first question, whether the petitioner properly showed that the
answers to these questions would incriminate him, we say he did under the
Hoffman case19 and the Patricia Blau 20 decision.
The basis of the difference between the petitioner and the Government on
this argument is based on the circumstance that the Government in its rather
voluminous brief here never goes on to quote that portion of the Hoffman
opinion which says that in order to establish the privilege it isn't necessary
to prove the incriminating nature of the question beyond a mathematical
doubt, otherwise the privilege would be lost in asserting it. All that is
necessary is to show a reasonable apprehension in the setting that these
questions would incriminate,21 and I think he made that showing, and this is
why: He showed that the prosecutor had announced a plan to strike at the
numbers people who were not violating Federal law in the numbers
business, to strike at them through the Federal revenue and conspiracy laws.
How does one strike at a person for tax evasion? That is the wilful
understatement of income under Section 145 (b) of the Internal Revenue
Code.22 The first requirement is to show that the defendant has an income-
producing business. Then you go on from there. That is the first
requirement. You have to show that he is in an income-producing business
if you are trying to establish an understatement of income by circumstantial
evidence. That appears from the writings of the Government's own tax
experts, which we have set forth in the Appendix to our reply brief.23
15 187 F. 2d 35.
16 341 U. S. 944.
17 192 F. 2d 201.
18 342 U. S.917.
19 341 U. S. 479.
20 340 U. S. 159.
21 See Section 35 (d), supra, at pp. 106-107.
22 Now § 7201,1.R.C. 1954.
There is no difference of opinion on it. Non-government authorities in the
same field say the same thing.24 The cases establish it. When you are
setting out to prove tax evasion—that is, wilful understatement of income in
violation of 145 (b) —the first thing you show is that the man had an
income-producing business. That is why this question was important. That
is why this petitioner specifically claimed his privilege under Section 145
(b), and he cited it.
MR. JUSTICE REED: How definite was the Government's threat of criminal
prosecution?
MR. WIENER: The prosecutor said, "Even though there are Federal laws
against numbers, we will get them through the tax laws." He announced,
"We have the tax returns as each witness is called before the Grand Jury."
As a matter of fact, people have been indicted and tried under the tax
laws arising out of this very investigation. It was a threat to do it under the
tax and conspiracy laws.
MR. JUSTICE REED: The criminal laws?
MR. WIENER: Yes, the criminal Federal tax laws.
MR. JUSTICE REED: Did they use the word "criminal"?
 MR. WIENER: It was the Grand Jury. It wasn't the Civil Division of the
United States Attorney's office. The Grand Jury returns indictments. It
doesn't draw complaints for civil actions. I think it was a definite threat and
under the Hoffman case he proved all he could possibly show without
actually incriminating himself.
MR. JUSTICE JACKSON: I suppose the threat was not necessary to the
privilege in any event.
MR. WIENER: It makes it an a fortiori case, that is all.
MR. JUSTICE JACKSON: If the witness knows that what he will reveal would
form the basis of a prosecution, it is enough without a threat.
MR. WIENER: I entirely agree.
MR. JUSTICE JACKSON: I suppose he can assume that the Federal
prosecutors will prosecute him if he discloses the facts which show that he
ought to be prosecuted.
MR. WIENER: I agree that the threat simply makes it an a fortiori
case.
23
Rothwacks, Criminal Tax Prosecutions, in 1 Current Issues in
Federal Taxation 269, 282, 283; Rothwacks, Problems in Criminal Tax
Prosecutions, in 3 id. 297, 310-311.
^Baiter, Fraud Under Federal Tax Law, 280, 281.
Under the Federal tax laws, if you have employees, you have to make
withholding returns.25 This petitioner showed that in the numbers business
there are employees. He showed he had filed no withholding returns. He
was forced to make that showing when the Court sustained the Internal
Revenue's representative's claim of privilege in respect to answering. So, if
he had said, "Yes, I am in the numbers business," that would have been the
link in the chain. If you are in a business which has employees and you did
not file withholding returns, and this man had not filed any, then this man
would have revealed that a crime had been committed. It is the link in the
chain. What more could he possibly have shown other than actually
incriminating himself?
 These same considerations apply to the question, "Who?" If he had
answered who they were, not only would he be supplying witnesses against
him, but Mr. Goldschein had stressed the importance of conspiracy and Mr.
Goldschein had asked the petitioner the questions, "Do you know Willy
Weisberg? Do you know 'Cappy' Hoffman?"
Willy Weisberg is the William Weisberg who was considered in the
Hoffman case.26 Cappy Hoffman, the Hoffman record shows, was the
Hoffman of Hoffman v. The United States.27
I think the Patricia Blau case28 covers it completely, because here you
have a prosecutor saying, "I am going to get you through the conspiracy
laws, and I want to know the names of your co-conspirators."
MR. JUSTICE BURTON: This argument as to the danger to himself of a
prosecution for violation of the tax laws, that would apply to the operation
of a legitimate business as much as it would to the operation of illegitimate
business.
MR. WIENER: Yes, that is correct.
MR. JUSTICE BURTON: He refused to answer because it was an illegitimate
business?
MR. WIENER: That is right. As far as the Federal law is concerned, there is
nothing wrong with the numbers business, subject only possibly to the new
tax law,29 which I haven't studied.
MR. JUSTICE BURTON: SO, if he is asked what business he is in, he knows
he is in a business.
MR. WIENER: Yes.
25Sections 1430, 1622, 1627, and 2707, I.R.C. 1939; now Sections
3402 (a), 6672, and 7203, I.R.C. 1954.
25 See 185 F. 2d at 619, 620; 341 U. S. at 481, 484, 488.
27 See R. 11-14, No. 513, Oct. T. 1950.
28 340 U. S. 159.
29Section 471 of the Revenue Act of 1951, 26 U.S.C. [1952 ed.] §§
32853298; now §§ 4401-4423, I.R.C. 1954 (Taxes on Wagering); see
 United States v. Kahriger, 345 U. S. 22.
If I am in the law business and I have not filed a proper tax return and
they ask, "What do you do?," I may incriminate myself if I make the
admission.
Certainly, if the prosecutor's announcement says that he is going to get at
the numbers people through the revenue laws, I do not think any further
showing is necessary.
I come to the second question. The petitioner here said, "I can show that
the answers to these questions are incriminating and I will show, if you will
let me have Mr. Goldschein's brief case, his papers, his file and let me
inspect the Grand Jury's minutes, then I will prove to a mathematical
certainty that these are the missing links in the chain."
The judge said, "You first make a showing of incrimination, then I may
let you see the papers."
THE CHIEF JUSTICE: Mr. Wiener, I would like to hear you in regard to the
state offense angle.
MR. WIENER: Under the Murdoch case30 an individual cannot claim
privilege before a Federal tribunal because the answer may incriminate him
of a State offense. We are not required to reexamine that. We are not
required to examine either the possible Lustig v. United States31
application; in other words, if there is a preconceived plan, a cooperative
effort, between the Federal prosecutor and the State prosecutor that, after
the Federal prosecutor obtains the answers which are non-incriminating
under Federal law but incriminating under State law, he then turns them
over to the State prosecutor, whether the State prosecutor may proceed with
the prosecution or not—we do not have that problem. We only have the
problem here of an activity proscribed by State law as to which the
petitioner, the witness, claims no privilege under State law but says that, "If
I answer, if I admit being in this activity, I have incriminated myself under
Federal law."
THE CHIEF JUSTICE: What authority is there in back of the Government's
position in regard to that?
 MR. WIENER: The only authority I can find for the Government's position
on the question of self-incrimination is the first portion of the Hoffman case,
leaving out the rest of the paragraph.32
THE CHIEF JUSTICE: I mean as to a State offense, not a Federal offense.
MR. WIENER: It has been assumed all along there is a Pennsylvania statute
on it. I don't know.
THE CHIEF JUSTICE: HOW would a Pennsylvania statute affect this? MR.
WIENER: I don't think it would. We don't think it would.
80 United States v. Murdoch, 284 U. S. 141.
81338 U. S. 74.
82 341 U. S. at 486-487.
THE CHIEF JUSTICE: Basically, what is your view as to that issue? He says,
"I refuse to answer on the ground of incrimination. It isn't a Federal offense
on which I would be incriminated, but a State offense."
MR. WIENER: Under the Murdoch case,33 that is not a sufficient claim of
privilege.
MR. JUSTICE REED: You are not attacking that case?
MR. WIENER: I am not attacking the Murdock case, nor do I have to say
the Murdock case should be modified by the Lustig34 application. I do not
have to go into that at all because the petitioner here made a specific
contention of incrimination under Federal law and he cited the Federal
statutes.
MR. JUSTICE BLACK: Suppose you are wrong on that, what happens then?
MR. WIENER: Then he goes to jail for five months.
MR. JUSTICE BLACK: You would still not ask the Court to consider whether
they can send him to jail for refusing to answer, if he might be convicted in
a numbers case?
MR. WIENER: That would require a reexamination of Murdock.
MR. JUSTICE BLACK: YOU are waiving that point?
 MR. WIENER: Yes. I do not think we reach it. Under the Hoffman and
Patricia Blau cases we have made a sufficient showing. We do not have
that question here. It hasn't been raised at any stage. It hasn't been briefed
by either side. I accept it. There may come a time when we will have to—
THE CHIEF JUSTICE: What about this fellow's time? If you waive it, his
time is past.
MR. WIENER: I feel, Mr. Chief Justice, as long as the Court applies the
doctrine laid down at the last term in the Patricia Blau and Hoffman cases,
the petitioner is not in jeopardy, because those decisions require reversal.
There is another reason. That is what the Government has done here. He
claimed his privilege. He said, "I can prove this is incriminating. Let me
have the prosecutor's file, let me have the Grand Jury minutes. I will then
prove it is the link."
The Government says, "These documents are privileged."
We say, as long as they want to prosecute, they have to waive their
privilege. They cannot simultaneously prosecute and assert their privilege
in respect to papers which the accused needs for his defense, just as a matter
of fairness. If we need authority, there is a whole line of cases in the Second
Circuit saying that the Government has its choice, either it asserts its
privilege or it prosecutes.35 It cannot do both. As a matter of fairness, it
cannot deprive an accused of the documents he needs for his defense. As to
that, we also have the authority of the Third Circuit, the court below, in the
Singleton case,36 decided after this case. There was a similar question there.
I suppose they got the idea from this case. The Court of Appeals examined
those documents and the court below said the trial judge should have
examined them.
33 Supra note 30.
34 SM/>wnote31.
MR. JUSTICE JACKSON: DO you think he has to show any danger in the
sense of any evidence of a prosecution? Suppose the prosecutor doesn't
have the slightest idea that he is guilty of a crime and his answer, in his
opinion, might reveal that he was?
MR. WIENER: I think that is enough.
 MR. JUSTICE JACKSON: You wanted to gild the lily?
MR. WIENER: I had to, your Honor, because we have lost this case twice
below. I think he made a sufficient showing in the District Court the first
time.
MR. JUSTICE JACKSON: That is a pretty good reason for doing it.
MR. WIENER: The court below has twice disagreed with us. We have to go
into it at great length.
As your Honor says, that should be sufficient if he makes it in good faith,
and he certainly made it in good faith here. When he wanted to get the tax
returns, as a matter of fact, got the tax official to testify whether he had filed
withholding tax returns, the Government was permitted to assert its
privilege and the judge said, "Let Greenberg take the stand if he didn't file. I
won't compel the Government to do that." 37
What he has been forced to do there is all but establish his privilege by
incriminating himself.
That leaves only one other point—
MR. JUSTICE REED: Would good faith alone be a defense?
MR. WIENER: Not necessarily. That would go only to mitigation. I think
he has done what this Court in the Hoffman case said wasn't necessary. As a
matter of fact, the Government goes so far that they come perilously close
to commenting on his claim of privilege by saying, "Well, everybody knows
he is in the numbers business." 38
There is a third point in the case, but it is too detailed for oral discussion.
That has reference to the facts and the consequences of the variance
between the record of the trial and the judgment of commitment. That is
fully covered in the briefs, and I rely on the briefs for that.
35United States v. Zwillman, 108 F. 2d 802; United States v.
Andolschek, 142 F. 2d 580; United States v. Beekman, 155 F. 2d 580;
United States v. Grayson, 166 F. 2d 863 (all C.A. 2).
36 193 F. 2d 464 (later reversed, 343 U. S. 944).
37 Record, p. 35a.
 38"It would be difficult to read the record here and not realize that
everybody knows that petitioner is in the numbers business." U. S. Br.
48, No. 461, Oct. T. 1951.
MR. JUSTICE CLARK: What is your position in the event some of the
questions are proper and some improper?
MR. WIENER: I should think that the normal rule would apply, that it
would be sufficient to sustain conviction and it would be appropriate to
remand for resentencing, but I think all the questions are improper. There
are only three unanswered. One is: "Are you in the numbers business now?"
The second is: 'What other business do you use it for?" The third is: "Who
are the numbers people around your place of business?"
MR. JUSTICE CLARK: If you are not correct that all the questions were
improper, you think it should be remanded for resentencing?
MR. WIENER: Yes, because there are fewer. But I think they are all
improper. I think the rule is fairly well settled. Of course, there may be a
question whether this should be treated as one indictment or whether each
question should be treated as a separate count. Perhaps I have conceded too
much, treating each as a separate count.
Actually, I think that under the Hoffman and Patricia Blau cases all of
the unanswered questions were improper, so we never really get to that.

ARGUMENT ON BEHALF OF THE UNITED STATES

OF AMERICA
By Mr. Goldschein.

MR. GOLDSCHEIN: May it please the Court, the three questions here were
asked of Mr. Greenberg at the tail end of many that were asked him before,
some of which are repeated here in the brief. This case is different from the
Hoffman case in that the Hoffman case the background of Hoffman was
such, as stated by this Court, that it was not perfectly clear that, if he
answered the question, he would not incriminate himself for some Federal
crime. Here it is limited, his crime is limited. He sets out specifically just
what he is fearful of and he says it in this way:
"If I admit that in that business I had employees, then I know that my
answer will tend to incriminate me in violation of Sections 1625 (a), 1626
(a), (b) and (c), as well as Section 145(a), (b) and (c) above referred to."
May it please the Court, the questions asked—or the first one asked him
was: "Are you in the numbers business now?"
It was the year 1950. No income tax return was required to be filed until
March of 1951. So there can be no incrimination under the income tax laws
for failure to file an accurate return. It wasn't due. That question was
discussed considerably in the court, and we pointed out to the court that the
question had reference to 1950. We went back before the Grand Jury and
rephrased the questions. So that there could be no doubt that referred to the
year 1950, and took it out of any tax claims. Then he says:
"Were I to admit that I had no records and kept no account of my other
business, lawful or unlawful, other than the business testified to, I would be
incriminating myself in violation of the federal income tax laws. I know if I
admitted being in any other business, lawful or unlawful, and had
employees in the operation of that business and/or if I admitted that, I did
not withhold the taxes due to the United States Government, I would be
incriminating myself, not only in violation of the income tax laws, which I
have enumerated above, but that I may tend to incriminate myself with
regard to the conspiracy charges in connection therewith."
He is limiting himself to what he is fearful of and, when we asked him
what business he was in or what business he used the telephone for, we
didn't have the problem we had in the Hoffman case. He might incriminate
himself for some statute because of his general background, because the
nature of the individual or his past experience was such. Here we have a
specific limitation. If he answers the question, it may show that he is in a
business and, if he is in a business, he may be asked whether or not he has
some employees. Then the question will arise whether or not he paid any
withholding taxes for these said employees, and whether or not he paid any
social security taxes on these employees, if he had any employees, and if
the questions were asked.
There is a great deal of difference between the Greenberg case and the
Hoffman case or the Patricia Blau case. In the Blau case it is apparent that,
if they answered the question, the answer would be a link in the chain of
evidence that would correct them with the Smith Act violation. It was a link
in the chain of evidence. But here, if he answered that he was in the
numbers business, would that be a link in the chain to the violation of any
of the statutes here referred to?
MR. JUSTICE BLACK: What would be the object in asking that?
MR. GOLDSCHEIN: TO determine whether or not he knew "Nig" Rosen,
who was supposed to be a numbers baron or numbers banker in that area.
MR. JUSTICE BLACK: What did that have to do with the Federal statutes?
Why was he asked those questions? Was it in connection with some crime?
MR. GOLDSCHEIN: NO. These connections were questions that would lead
to other questions and other people to determine whether or not the criminal
laws were there being violated.
MR. JUSTICE BLACK: Federal criminal laws?
MR. GOLDSCHEIN: Federal criminal laws.
MR. JUSTICE BLACK: What Federal criminal laws?
MR. GOLDSCHEIN: Any.
The letter of authority authorized counsel for the Grand Jury to assist the
Grand Jury in making inquiry with reference to the internal revenue, liquor
laws, narcotic laws, postal violations, Mann Act laws, or conspiracies to
commit violations of those laws, or other violations of the Federal statutes.
MR. JUSTICE BLACK: What did this have to do with that, whether or not he
was engaged in the numbers racket?
MR. GOLDSCHEIN: May it please the Court, it is one of the questions that
would possibly lead to other questions.
MR. JUSTICE BLACK: Other questions of what kind?
MR. GOLDSCHEIN: Violations of the Federal statutes, may it please the
Court.
MR. JUSTICE BLACK: Did his being in the numbers business have anything
to do with it?
MR. GOLDSCHEIN: No, sir.
MR. JUSTICE BLACK: Does it have anything to do with the White Slave
Law which you mentioned? What was its relevancy? I am just trying to find
out what you were asking him about and what for.
MR. GOLDSCHEIN: We were asking about all the people in that area who
were engaged in the violation of any law, whether it be State or Federal, to
determine whether or not there was any connection between the State and
Federal law.
MR. JUSTICE BLACK: YOU were trying to make him admit he was violating
the State law?
MR. GOLDSCHEIN: NO, sir. We weren't trying to make him admit anything.
All we were trying to do was to find out what the facts were in that
community to determine whether or not the Federal laws were being
violated. That wasn't a case where the investigators had gone out and made
an investigation and turned the information over to the Grand Jury for the
purpose of presenting an indictment.
MR. JUSTICE BLACK: SO what you convicted him for was for refusing to
tell whether he was engaged in numbers; is that right?
MR. GOLDSCHEIN: NO, sir. What he was convicted for was refusing to obey
the order of the Court to answer the question, "Who were the numbers
writers around the area of 1133 West Diamond Street?"
MR. JUSTICE BLACK: What did the Federal Government have to do with
that?
MR. GOLDSCHEIN: They were preliminary questions, may it please the
Court.
MR. JUSTICE BLACK: Were you up there to enforce the gambling and
numbers laws?
MR. GOLDSCHEIN: NO, sir. We have nothing to do with the numbers laws,
the bookmaking laws or any of the other laws.
MR. JUSTICE BLACK: YOU have nothing to do with these laws which you
asked him whether he violated?
MR. GOLDSCHEIN: NO, sir. We weren't concerned with the violation of any
State laws, at all.
MR. JUSTICE BLACK: Why did you ask him, then?
 MR. GOLDSCHEIN: May it please the Court, the only way you can find out
whether there are any laws violated in a community is by calling everybody
in whom you are advised has any connection—
MR. JUSTICE BLACK:—with violating any other laws?
MR. GOLDSCHEIN: Yes, sir. That is the way it is done, from my experience.
I have learned that this is the only way it can possibly be done. You cannot
call the doctor in, you cannot call the preacher in, you cannot call the
lawyer in, because they have no connection with it, and generally do not
know. But you have to call the underworld in, generally. Of course, you, in
the course of an inquiry like that, do call bankers in, you call in everbody
who—may give you a lead toward any Federal crime, whatever that may be
—railroad officials, airplane company officials—wherever the scent leads,
you follow.
In so far as the revenue agents were concerned, in connection with that
investigation or statements ! made to the newspapers, that just didn't
happen. We had no revenue agents at the time that Greenberg was called.
We had no revenue agents of any kind making any kind of an investigation
at the time that Mr. Greenberg came before the Grand Jury.
MR. JUSTICE BLACK: I gathered from what you said that this had no
relevance to the possible violation of the Federal revenue laws and had no
relevance to the possible violation of any other Federal laws.
MR. GOLDSCHEIN: May the Court please, let me explain. The presentment
charged these men with obstructing the business of the Grand Jury and
wilful disobedience of the order of the court, but did not find them guilty
under the obstruction of the business of the Grand Jury phase.
If the Grand Jury is limited to asking questions, each question of which
must be pertinent to the issue, may it please the Court, then you destroy the
inquisitiorial functions of the Grand Jury.
MR. JUSTICE BLACK: IS there any limit to the power of the Grand Jury?
MR. GOLDSCHEIN: NO. Under the Blair case,39 there is no limit. The Grand
Jury has a right to make inquiry to determine that there is no violation of the
Federal statutes.
MR. JUSTICE BLACK: What about violations of local laws?
 MR. GOLDSCHEIN: We were not investigating local laws, if your Honor
please. It is very often necessary, when you call a man in—
MR. JUSTICE BLACK: That is all you asked him about, a local law?
MR. GOLDSCHEIN: That is all we got to.
MR. JUSTICE BLACK: You just said you weren't interested in that.
MR. GOLDSCHEIN: We are not interested in violations of local laws. In
calling a man in, if he is a banker, you want to know what his business is. If
he is a lawyer, you ask him what his business is. Always for the record you
attempt to identify the individual so that the record will show who it is that
is testifying before the Grand Jury.
MR. JUSTICE BLACK: Was that the purpose of this, to try to identify this
man?
MR. GOLDSCHEIN: NO. We wanted to know about the criminal situation,
the crime situation, in Philadelphia. That was the purpose of the Grand Jury.
MR. JUSTICE JACKSON: YOU hadn't gotten to that?
MR. GOLDSCHEIN: NO, sir. We hadn't gotten to that. He refused to answer.
MR. JUSTICE CLARK: He had previously said he was in the real estate
business.
MR. GOLDSCHEIN: Yes, sir. He said the Amtol Corporation was a real
estate corporation and he was employed by the Amtol Corporation, but he
didn't claim any privilege on that because he probably didn't have any
employees in that business and/or employees weren't an essential part of
that business in his mind, and therefore he didn't claim any privilege on that
question. He volunteered that. There wasn't any trouble on that.
MR. JUSTICE CLARK: Mr. Goldschein, on that point of "now" which you
emphasized a moment ago, "Are you in the numbers business now," when
do you file social security reports?
MR. GOLDSCHEIN: YOU file them at the end of the year. Withholding tax
returns are filed quarterly.
MR. JUSTICE BLACK: That is employee withholding?
MR. GOLDSCHEIN: Yes, sir.
 MR. JUSTICE CLARK: Would that be required if he was in the numbers
business and had employees?
39 Blair v. United States, 250 U. S. 273.
MR. GOLDSCHEIN: Sir?
MR. JUSTICE CLARK: Would withholding taxes apply if he had employees?
MR. GOLDSCHEIN: Withholding taxes would apply if he had employees,
but, may it please the Court, it is common knowledge in that area that in the
numbers business there are no employees as such that come under the
particular statute. He didn't identify himself as being either a banker, a pick-
up man or a numbers writer. He testified and said that in the numbers
business there are three types of individuals. There is a writer, there is the
pick-up man, and there is the banker.
The way it operates is that the numbers writer goes around. He said those
keep the records. The writer writes the numbers and takes the bets. He takes
out his cut of 25 per cent and turns it over to the pick-up man. The pick-up
man collects from all the numbers writers, takes out his 10 per cent, his cut
of 10 per cent, and gives the balance to the banker.
That was discussed in the courts below, but it does not appear in the
printed record here.
All he was interested in was that, if he disclosed that he was a numbers
banker, the next question would be whether he had any employees. The
next question after that would be whether he kept any records. Those
questions weren't asked. They came squarely within the Mason case,40 and
the Ward case 41 cited in the Mason case. Both were cited with approval in
the Hoffman case.
In the Mason case the Court will recall that a man was asked whether
there was a game of cards going on at the table at which he was sitting. The
Court in that case held that there was no direct danger of incrimination
simply because of a card game going on at a table at which he was sitting or
at the next table.
The Mason case cites the Ward case, a Missouri case, in which a man was
asked whether he knew any faro players in that community. He refused to
answer that question. The Missouri court, relying on the Burr case,42 said
there was absolutely no connection of direct danger of incrimination under
those circumstances and held him in contempt.
May it please the Court, the next question that was stressed here was the
Government refusing to turn over any records. We say unequivocally that a
defendant in any criminal case has a right to call on the Government or
anybody to produce any specific document or thing that would tend to
prove or disprove any issue in his defense. But we say that there was no
request for that in this case. We say in this case it was purely a fishing
expedition to see what the Government had in its file. If there was anything
that they could use that was in the Government's file for any purpose, it was
that much gained. Here is what the request was:
40 Mason v. United States, 244 U. S. 362.
41 Ward v. State, 2 Mo. 120.
42 United States v. Burr (In re Willie), Fed. Case No. 14,692e (CCD.
"Subpoena to bring all records concerned with investigation of Irving
Greenberg and used in connection with the examination of Irving
Greenberg as a witness before the Grand Jury and with the examination of
other witnesses who have appeared before the Grand Jury and have testified
about Irving Greenberg."
I cannot imagine a more extensive fishing expedition that this was.
Had there been a request, may it please the Court, to bring in the Grand
Jury testimony of Bill Smith who testified against Irving Greenberg, then
there might be some basis for that, Bill Smith having been a revenue agent
who was making an investigation on Irving Greenberg or making an
investigation on a partner of Irving Greenberg or an associate of Irving
Greenberg.
Yes, I can see that. But to bring in all the Grand Jury testimony of
everybody, without naming them, anybody who mentioned the name of
Irving Greenberg, is something that the Court couldn't understand and the
Government couldn't understand as being pertinent to any issue or would
tend to prove any issue in this case.
Asking for the Government's file, they didn't ask for the statement of any
one particular individual that the Government had in its file which would
tend to prove or disprove any issue or fact in that case. That wasn't the
issue. The issue was: Bring it in and let's look it over and we will be
governed by any other further offer of proof after we see what is in the
records. That is not the Zwillman case 43 or any of the other cases—the
Beekman case 44 cited in those cases.
May it please the Court, there was a request made in those cases for
specific documents.
In the Andolschek case,45 if the Court recalls, there they asked for
specific reports that they filed in that case showing their dealings with other
people. They didn't make a blanket request for records.
Now, may it please the Court, of course, the courts have held that the
formal order of the court is that which is binding, and what the court may
say orally at the conclusion of the hearing must give way to the written
order. The only difference is that in the presentment the Grand Jury charged
that he refused to answer the question, "Are you in the numbers business
now," and also in the presentment with the violation of two sections of 401,
obstruction of business of the Grand Jury and wilful disobedience of the
order of the Court.46

United States v. Zwillman, 108 F. 2d 802 (C.A. 2) .

United States v. Beekman, 155 F. 2d 580 (C.A. 2) .
United States v. Andolschek, 142 F. 2d 580 (C.A. 2) .

May it please the Court, we say that the court incidentally found him
guilty of the latter; that is, wilful disobedience of the order of the court, and
didn't find him guilty of contempt in refusing to answer the first question.
That isn't a variance. If anything, it inured to the benefit of Greenberg.
THE CHIEF JUSTICE: IS that to say that the court didn't find him guilty—
MR. GOLDSCHEIN:—of obstructing—
THE CHIEF JUSTICE:—of declining to answer the question, "Are you in the
numbers business now?"
MR. GOLDSCHEIN: Yes, sir, but did find him guilty of refusing to answer
the other three questions: "Who," referring to the numbers writers around
1133 West Diamond Street—and "What business do you use it for,"
referring to the telephone at that address—and "Do you use it for any other
business," referring to that same telephone.
MR. JUSTICE BLACK: IS that question number six, seven A, on page
3A?
MR. GOLDSCHEIN: Page 4 of the Government's brief.
MR. JUSTICE BLACK: I was looking at the record. You brought in 13
questions. How many of those were involved?
MR. GOLDSCHEIN: May it please the Court, that is the presentment. The
presentment sets out the questions that he first was asked before the Grand
Jury, which he refused to answer. Then he went back before the Grand Jury
and answered most of those questions, all except: "Are you in the numbers
business now?" Then he subsequently went back before the Grand Jury and
refused to answer the question on 6-A and 7, three-quarters of the way
down on page 7-A: "Do you use it for any other business?" That is in the
record and on page 4 of the brief it also appears.
THE CHIEF JUSTICE: That was asking about the telephone. You say it was a
preliminary question.
MR. GOLDSCHEIN: Yes, sir.
46 "§ 401. Power of court
"A court of the United States shall have power to punish by fine or
imprisonment, at its discretion, such contempt of its authority, and none
other, as—
"(1) Misbehavior of any person in its presence or so near thereto as to
obstruct the administration of justice;
"(2) Misbehavior of any of its officers in their official transactions;
"(3) Disobedience or resistance to its lawful writ, process, order, rule,
decree, or command."
THE CHIEF JUSTICE: What would have been your follow-up question on it
that would have been pertinent to a federal offense?
MR. GOLDSCHEIN: Whether he takes bets over that telephone on horses.
 THE CHIEF JUSTICE: That is not a Federal presentment.
MR. GOLDSCHEIN: NO, sir, but we know, then, who the bookmakers are,
whether he lays off bets with anyone and who the people are that he lays off
these bets with. There is the higher up in the bookmaking business. May it
please the Court, the Claiborne case47 from Missouri is just such a case.
In that case they questioned the right of the Grand Jury to investigate
State offenses. The question referred to some pistols that one Gargotta had
in his possession that were used in a murder case in Kansas City prior to
that, and Claiborne, a detective, switched pistols—
MR. JUSTICE BLACK: What case is that?
MR. GOLDSCHEIN: Claiborne.
MR. JUSTICE BLACK: IS that cited in the brief?
MR. GOLDSCHEIN: I do not think it is cited in the brief. In response to the
question asked by the Chief Justice, I was citing a case on that. It is a Fed.
2d case.
MR. JUSTICE BLACK: It didn't come up here?
MR. GOLDSCHEIN: NO, sir. It is 77 Fed. 2d 682.
May it please the Court, that apparently was a question of whether or not
a policeman committed perjury in the State court or whether or not Gargotta
was carrying pistols, apparently a State law violation, but it developed in
that case, may it please the Court, that those two pistols that Gargotta used
in these murders were stolen from a Federal armory and were Government
property.
So, while apparently they were going into matters that were purely within
the jurisdiction of the State Court, it developed that it was a Federal
violation that Claiborne was indicted on, perjury.
MR. JUSTICE BLACK: But I do not understand when you said there was no
possible indictment on which you could come here.
MR. GOLDSCHEIN: NO. This investigation, may it please the Court, was not
directed at him.
 MR. JUSTICE BLACK: Was it directed against anybody else as far as a
federal offense was concerned?
MR. GOLDSCHEIN: There was no Federal indictment presented.
MR. JUSTICE BLACK: I am not talking about the indictment.
MR. GOLDSCHEIN: No, sir. This was purely the beginning of an
investigation to determine whether or not any Federal laws were being
violated. The law enforcement agencies of the Government have often, may
it please the Court, called upon the courts and asked for their assistance in
the enforcement of the laws, when it comes to their attention that
lawlessness prevails.
47 Claiborne v. United States, 77 F. 2d 682 (C.A. 8) .
MR. JUSTICE BLACK: By lawlessness you mean violations of Federal laws?
MR. GOLDSCHEIN: That is what we are interested in primarily.
MR. JUSTICE BLACK: What other interests do you have?
MR. GOLDSCHEIN: We do not have any other. That is our objective. But we
only know whether or not there is a violation of the Federal law after we
make the investigation, may it please the Court.
MR. JUSTICE CLARK: After you make the investigation to see whether the
State laws have been violated?
MR. GOLDSCHEIN: NO, sir. After we make the investigation we determine
whether or not there are any Federal laws being violated and, may it please
the Court, that is the only way any inquisitorial power of the Grand Jury is
ever invoked or has ever been invoked, just as was done in the Burr case,48
may it please the Court.
A Grand Jury had to be convened to determine whether or not Aaron
Burr did violate the sedition laws of the United States. The investigative or
law enforcement agencies evidently were not able to make that case without
the assistance of the inquisitorial power of the courts, and they called upon
the courts to convene a Grand Jury to assist them in making this inquiry.
May it please the Court, that is done regularly, and it must be done in
order to enforce the laws.
 MR. JUSTICE BLACK: Maybe I am wrong, but I understood you to say that
this had no materiality. This man was brought in for failing to answer
something that had no possible relevancy to a Federal crime. It was the duty
of the judge to send him to jail, if he didn't answer it, according to your
theory, and there is no limit to the questions that the Federal prosecutor can
ask before a Grand Jury.
MR. GOLDSCHEIN: That is what the Blair case49 holds, may it please the
Court, because, unless you spell out a Federal crime to begin with, no
question that you ask the witness before the Grand Jury will have any
materiality because it doesn't lead specifically to a Federal crime and, as
said in the Blair case, the Grand Jury has a right to make inquiry to
determine that no Federal law has been violated. The only way you know
whether a Federal statute has been violated is after you make the
investigation and not before.
MR. JUSTICE BLACK: TO see if a Federal crime has been committed? MR.
GOLDSCHEIN: Yes, sir.
48 United States v. Burr (In re Willie), Fed. Case No. 14,692e (CCD.
49 Blair v. United States, 250 U. S. 273.
MR. JUSTICE JACKSON: Any State crime that yields income to the criminal
may be a violation of the Federal law if he doesn't share his proceeds with
the Government.
MR. GOLDSCHEIN: There is no doubt about that.
MR. JUSTICE JACKSON: SO if you can show him to be mixed in with a
lawless enterprise, then you check his income tax returns.
MR. GOLDSCHEIN: Yes, sir.
MR. JUSTICE JACKSON: That is what he was afraid of. MR. GOLDSCHEIN: I
assume that. But he wasn't afraid of it for that year.
MR. JUSTICE JACKSON: It seems to me you get pretty close to it when you
make him confess that he is in a lawless enterprise when he knows he hasn't
made appropriate tax returns and we know, sitting here—we cannot be so
dumb as not to know-—that that is really the way the Federal Government
gets those people.
 MR. GOLDSCHEIN: Yes, but in this instance, in the Greenberg case
specifically, his counsel showed the court that he wasn't fearful of violating
the income tax laws. He offered to show the income tax returns, to show
what he reported from his real estate business. He didn't report any
gambling, but he did report miscellaneous. He should have reported
gambling instead of miscellaneous.
MR. JUSTICE JACKSON: Then you just said, "Where are the books of the
miscellaneous business?"
MR. GOLDSCHEIN: Yes. When we get to that point, there is no doubt, if he
violated the income tax law, he can say, "I refuse to answer the question."
MR. JUSTICE JACKSON: I think the hook is enough to catch him if he admits
he is in the numbers business.
MR. GOLDSCHEIN: When the chase gets hot, as the Court said.
THE CHIEF JUSTICE: Your time has expired.
REBUTTAL ARGUMENT ON BEHALF OF PETITIONER
By Mr. Wiener.
MR. WIENER: If the Court please, I am amazed at the inconsistencies in
the Government's position.
Mr. Goldschein said here, in response to inquiries, that these questions
which petitioner refused to answer were not relevant to any Federal crime.
The Grand Jury says—record, page 8—"that each of said questions was
proper and material to the Grand Jurors' inquiry."
Mr. Goldschein said, in response to inquiries, as to why he was asking
these questions, well, it would lead to something else. But he denies that the
answers could be a link in the chain in the sense in which it has been used
in the self-incrimination cases.
Mr. Goldschein says that he was only asked, "Are you in the numbers
business now," but the tax cases say that, if you admit being in the business
now, that is competent proof that you were in the business some time back,
and that is what got Johnson in the 318th U. S.50 The Court held that it was
competent proof to prove it farther back.
 In the same way the tax lawyers say in the legal periodicals, first prove
he has an income-producing business.51 My brother Goldschein says on
that, that it had nothing to do with it. The District Judge here said, just
before sentencing this petitioner, "I don't see much difference between this
and the Hoffman case." 52
If the Court please, neither do we, although Hoffman was shown to have
been a somewhat more unsavory character, but just as this Court has
reminded us many times that the Constitution protects the guilty as well as
the innocent, I submit that, when a man claims his privilege against self-
incrimination, he doesn't have to show he is a moral monstrosity before he
can be allowed that privilege.
(Whereupon at 2:00 P.M., argument in the above-entitled matter was
concluded.)
Section 178. Petitioner's problems in the foregoing argument.
—It would be stretching matters quite a bit to urge that, after the decision in
the Hoffman case just the year before, petitioner's counsel in Greenberg was
facing an uphill fight. The circumstance that the Court would not allow full
time for argument demonstrated the judicial belief that the question was a
narrow one, and the per curiam reversal that followed the argument by a
mere five days53 was further proof that the case was not one of outstanding
complexity or difficulty, even though petitioner lost one vote that Hoffman
had had.54 But the argument does illustrate three points that have been
discussed above.
(a) Don't let yourself be diverted. Back in United States v. Murdoch^
decided in 1931, the Court had held that a witness in a Federal court could
not successfully refuse to answer a question when its only tendency was to
incriminate him under State law. This doctrine was reaffirmed some 13
years later in Feldman v. United States/6 over strong and articulated dissent
by three Justices.
50 See Johnson v. United States, 318 U. S. 189, 195-196.
51 See notes 23 and 24, supra.
52 Record, p. 71a.
 53See 343 U. S. 918: "Argued April 2, 1952. Decided April 7, 1952.
Per Curiam: Judgment reversed. Hoffman v. United States, 341 U. S.
479. Mr. Justice Reed and Mr. Justice Burton dissent. Mr. Justice
Frankfurter took no part in the consideration or decision of this case."
54Mr. Justice Burton, who had been with the majority in Hoffman,
dissented in Greenberg. (Mr. Justice Frankfurter, also with the majority
in Hoffman, did not hear the argument in Greenberg because of illness,
and so did not participate in the decision.)
55284 U. S. 141. The conviction was thereafter reversed because the
requisite willfulness was found wanting. United States v. Murdoch, 290
U. S. 389. 56 322 U. S. 487.
As the transcript of argument shows, petitioner's counsel steadfastly
refused to be drawn into requesting a reexamination of the Murdock-
Feldman doctrine. Why? Because I felt that if that issue were ever squarely
raised, there might result a Donnybrook such as could well endanger the
decision. I felt I was on sound ground by reason of Hoffman and Patricia
Blau; why risk a sure thing for a very doubtful, very chancy bet? See
Section 121, and reread the second full paragraph at p. 326.
(b) Don't attempt to cover complex details orally. The Greenberg record
showed—I am abbreviating and simplifying substantially—that the Grand
Jury's presentment charged both a refusal to answer four questions before
the Grand Jury in violation of 18 U.S.C. § 401 (1) and a deliberate
disobedience of the order of the District Court to answer those questions,
contrary to U.S.C. § 401 (3) ; 67 that, after the trial, the District Judge made
a general finding of guilty; but that the judge later signed a formal judgment
and commitment which varied the general finding in two respects: First, it
found petitioner guilty of only refusing to answer three questions. Second, it
found him guilty only of deliberate disobedience of the lawful order of the
court, omitting all reference to obstruction of justice by reason of failure to
answer questions before the Grand Jury.
On the first appeal, the Court of Appeals dealt with the case on the basis
of the recitals in the judgment, and thus passed over the allegedly
incriminating character of the fourth question, "Are you in the numbers
business now?" 58 But, in its second opinion, it considered that question and
held it non-incriminating.59
The argument for petitioner was, first, that the judgment pronounced in
court controls, and prevails over the later formal commitment; 60 and,
second, that the record showed no disobedience of a direct order by the
District Judge, but only that the petitioner declined an opportunity to purge
himself of the contempt involved in refusing to answer questions before the
Grand Jury. That is to say, petitioner argued that he stood convicted of
something he was not shown to have done.61
57 See note 46, supra, for the text of the statute.
58 See 187 F. 2d at 37.
59 See 192 F. 2d at 203.
60Hill v. United States, 298 U. S. 460; Watkins v. Merry, 106 F. 2d 360
(C.A. 10).
Now, very clearly, the foregoing is extremely complex even as condensed
above. To have explained it so that any listener could understand it would
have been a difficult task at best, even without time limits. But to have
attempted such an explanation within the 30 minutes allowed, when other
and controlling issues imperatively required discussion, would have been
literally impossible. Hence, following the precepts laid down in Sections
116, 117, 120, and 137, above, the entire question of variance was relegated
to the discussion in the brief.
(c) Don't be afraid to say you don't know. As the transcript has shown,
the petitioner Greenberg had refused to answer several questions. Mr.
Justice Clark asked, "What is your position in the event some of the
questions are proper and some improper?" My replies were, quite plainly,
less than positive; as indicated above, see Section 121, one should never
hesitate to admit ignorance, even though I was probably not too far off in
my qualified answers.62 In any event, the Court by reversing the conviction
sustained my contention that all of the unanswered questions were
improper.

Section 179. Respondent's problems in the foregoing argument.

 —After the Supreme Court's decision in the Hoffman case, the
Government was in a most difficult position, a difficulty more than apparent
from its written argument. Thus, as was indicated at the argument, the
Government in the course of an 88-page brief, of which 35 pages were
devoted to the proposition that "There was no real danger that the questions
which petitioner refused to answer would have incriminated him," 63 never
once saw fit to quote the portions of the Hoffman opinion which read as
follows:
61 Cf. Cole v. Arkansas, 333 U. S. 196; Schooner Hoppet v. United
States, 7 Cranch 389, 394; Carlson v. United States, 209 F. 2d (C.A. 1),
and related cases. But cf. Enrichi v. United States, 212 F. 2d 702 (C.A.
10).
See, however, Levine v. United States, 362 U. S. 610, where, after the
petitioner refused to answer questions put to him by a Grand Jury, and
subsequently refused to obey the judge's order directing him to do so, he
was punished for a contempt "committed in the actual presence of the
court" pursuant to Criminal Rule 42 (a). The issue that divided the Court
was whether exclusion of the public from the courtroom violated his
constitutional rights, or whether he was simply "a party who * * * raises
an abstract claim only as an afterthought on appeal." As in the related
case of Brown v. United States, 359 U. S. 41, the question whether
petitioner's refusal to obey the judge's order to answer was simply a
continuation of his contumacy before the Grand Jury rather than a new
offense was not raised.
62 See Nilva v. United States, 352 U. S. 385, 396.
"However, if the witness, upon interposing his claim, were required to
prove the hazard in the sense in which a claim is usually required to be
established in court, he would be compelled to surrender the very protection
which the privilege is designed to guarantee. To sustain the privilege, it
need only be evident from the implications of the question, in the setting in
which it is asked, that a responsive answer to the question or an explanation
of why it cannot be answered might be dangerous because injurious
disclosure could result.
 "Petitioner could reasonably have sensed the peril of prosecution for
federal offenses ranging from obstruction to conspiracy." 64
Government counsel was therefore on the horns of a dilemma: On the
one hand, he was obliged to urge that his questions were non-incriminating
in order to justify petitioner's conviction for refusing to answer them. On
the other, he was bound to urge their relevance for purposes of the Federal
Grand Jury's functions. All of this dilemma was neatly summed up by (a)
the admission by counsel (p. 464, supra), "when we get to that point [viz.,
"where are the books of the miscellaneous business?"], there is no doubt, if
he violated the income tax law, he can say, 'I refuse to answer the question'
"—followed by (b) the trenchant comment of Jackson, J., "I think the hook
is enough to catch him if he admits he is in the numbers business."
The nub of the matter was that the Patricia Blau and Hoffman cases had,
in effect though not expressly, overruled the earlier Mason case.65 And,
since the questions had been asked, doubtless with Mason in mind, before
either of the two later cases had been decided, what was left proved difficult
to defend.
63 U. S. Br., No. 461, Oct. T. 1951, pp. 21-56 (Point I).
64341 U. S. at 486-487, 488. See also, generally, Section 35 (d),
supra, at pp. 106-107.
65 "The decision in the Mason case would not be followed today."
United States v. Coffey, 198 F. 2d 438, 440 (C.A. 3). True; see
particularly the cases cited in note 71, infra. But since the Mason case
has never been specifically overruled, it is still being cited. See, e.g.,
Lumbard, J., dissenting in United States v. Courtney, 236 F. 2d 921, 924,
926 (C.A. 2). Compare Section 35 (e), supra, at pp. 110-111.

Section 180. Sequel to Greenberg v. United States.

As has been indicated above, the argument in Greenberg was followed
within five days by a per curiam reversal.66 A similar but perhaps even
more drastic fate was visited on the Third Circuit's Singleton decision 67
five weeks later; that conviction was reversed simply on the strength of the
petition, without argument.68 In due course, these emphatic actions were
noticed by Courts of Appeals,69 with the consequence that for a number of
years most convictions in similar circumstances were reversed before
reaching the Supreme Court.70 A few later lapses joined Singleton in the
ignominy of per curiam reversal without argument.71 It may therefore now
be deemed settled law that a witness may properly claim his privilege if to
answer "might be dangerous because injurious disclosure could result." 72
By and large, almost every one of the contempt convictions was
overturned, particularly those arising from refusals to answer questions
propounded by the Kefauver Committee.73 The principal exception was
Rogers v. United States,7* which turned on waiver, and evoked a vigorous
dissent. It seems safe to say that the authority of the Rogers case has since
been markedly impaired by subsequent decisions narrowing any waiver of
the privilege against self-incrimination.75
66 343 U. S. 918.
67 193 F. 2d 464.
68 343 U. S. 944.
69See United States v. Coffey, 198 F. 2d 438 (C.A. 3); Aiuppa v.
United States, 201 F. 2d 287 (C.A. 6); United States v. Doto, 205 F. 2d
416 (C.A. 2).
70See, in addition to the cases cited in note 1, supra, Kiewel v. United
States, 204 F. 2d 1 (C.A. 8); In re Neff, 206 F. 2d 149 (C.A. 3); Maffie v.
United States, 209 F. 2d 225 (C.A. 1); Daly v. United States, 209 F. 2d
232 (CA. 1); Carroll v. Savoretti, 220 F. 2d 910 (C.A. 5); United States v.
Courtney, 236 F. 2d 921 (C.A. 2); Ballantyne v. United States, 237 F. 2d
657 (C.A. 5; In re Portell, 245 F. 2d 183 (C.A. 7); United States v.
Miranti, 253 F. 2d 135 (CA. 2); United States v. Triglio, 255 F. 2d 385
(C.A. 2); Isaacs v. United States, 256 F. 2d 654 (C.A. 8).
71 Trock v. United States, 351 U. S. 976, reversing 232 F. 2d 839 (C.A.
2); Simpson et al. v. United States, 355 U. S. 7, reversing Simpson v.
United States, 241 F. 2d 222; Wollam v. United States, 244 F. 2d 212; and
McKenzie v. United States, 244 F. 2d 712, all C.A. 9.
 Since then, the Ninth Circuit has—in Navy terminology—"got the
word." Hashagen v. United States, 283 F. 2d 345; and see particularly its
comments in Shane v. United States, 283 F. 2d 355, on the summary
reversals cited in the preceding paragraph of this note.
72 Hoffman v. United States, 341 U. S. at 487 (italics added).
73 See Aiuppa v. United States, 201 F. 2d 287, 300 (CA. 6):
"Despite the enjoyment by millions of spectators and auditors of the
exhibition by television of the confusion and writhings of widely known
malefactors and criminals, when sharply questioned as to their nefarious
activities, we are unable to give judicial sanction, in the teeth of the Fifth
Amendment, to the employment by a committee of the United States
Senate of methods of examination of witnesses constituting a triple
threat: answer truly and you have given evidence leading to your
conviction for a violation of federal law; answer falsely and you will be
convicted of perjury; refuse to answer and you will be found guilty of
criminal contempt and punished by fine and imprisonment. In our
humble judgment, to place a person not even on trial for a specified
crime in such predicament is not only not a manifestation of fair play, but
is in direct violation of the Fifth Amendment to our national
Constitution."
At any rate, before the scope of the privilege to refuse to answer
apparently innocuous questions was settled, it presented some fascinating
legal inquiries—and, as the present chapter indicates, some challenging
problems in advocacy as well.
74 340 U. S. 367.
75 Quinn v. United States, 349 U. S. 155; Emspak v. United States, 349
U. S. 190.
Table of Contents
Front Cover
INTRODUCTION
FOREWORD
ACKNOWLEDGMENTS
Chapter I: THE IMPORTANCE OF APPELLATE ADVOCACY
Chapter II: HOW FEDERAL APPELLATE COURTS DEAL WITH
APPEALS
Chapter III: ESSENTIALS OF AN EFFECTIVE APPELLATE BRIEF
Chapter IV: SUGGESTIONS FOR WRITING AND RESEARCH
Chapter V: THE FINER POINTS OF BRIEF-WRITING
Chapter VI: ESSENTIALS OF AN EFFECTIVE ORAL ARGUMENT
Chapter VII: SUGGESTIONS FOR PREPARATION FOR ORAL
ARGUMENT
Chapter VIII: THE FINER POINTS OF ORAL ARGUMENT
Chapter IX: THE TASK—AND THE GOAL— OF THE ADVOCATE
Chapter X: REHEARINGS
Chapter XI: NEW COUNSEL ON APPEAL?
Chapter XII: USE OF THE STATEMENT OF FACTS TO ADVANCE
ONE'S CASE: SUCCESSIVE BRIEFS IN THE SAME LAWSUIT
Chapter XIII: SUCCESSFUL PETITIONS FOR REHEARING
Chapter XIV: ANNOTATED CRITIQUE OF AN ORAL
ARGUMENT
SUBJECT INDEX
INDEX OF CASES