A Lecture on Appellate Advocacy

Well, Brethren and Sistren, I find myself in a completely impossible position: The Bar Association has made it clear that beginning at eight o'clock I cannot possibly talk beyond sixty minutes. And the Law School has made it clear that beginning at 8:30 I cannot possibly talk more than thirty minutes. That gives me, as far as I can judge by my watch, something like fifteen to seventeen minutes to deal with a topic which when adequately presented by Frederick Bernays Wiener--and I think rather adequately presented--occupies about 500 pages. (1) (Laughter.) Under these circumstances I trust that I, as I attempt to hold myself within reasonable bounds, may have unanimous consent, to, as the people in Congress say, "enlarge my remarks"? (Laughter.) Is there anybody who objects to my quote "enlarge my remarks," unquote? Mr. Chairman, I ask you to note that there is no objection. (Laughter.) I'm going to try to be just as short as I can, and you understand it's utter nuts to attempt to tell anybody how to argue an appeal in two hours. Let's begin with a few of the presuppositions before one even starts to talk; the things that are completely presupposed. When I was a kid at Yale, Old Hadley, the President, used to tell the Chapel speaker, "Few souls are saved after the first twenty minutes." (Laughter.) I should alter that general approach in terms of "No appellate advocate is created inside of an hour." (Laughter.) One has to assume a few things. One has to assume, for example, that you know about Davis' magnificent address in 1940, on how to handle oral argument on appeal. (2) One has to assume that you know about what I think is an even better job: Whitman Knapp's job, in 1959, Why Argue an Appeal, and If So, How?, (3) or Kenison's beautiful study of the general problem of appeal, (4) or that beautiful book by Fritz Wiener, now in two editions, backbone, and very little waste space, on effective appellate advocacy (5) and the approach to appellate advocacy by way of the federal courts. (6) I say one has to assume this. One has to assume that everybody understands that to handle an appeal without oral argument is silly. I see no reason to argue that to you. (7) If you don't understand that, why, what's the use of talking to you? One has to assume such other minor things as that the fellow who is about to have the appeal can read. A broad assumption, I know. (Laughter.) And one has to assume that he knows that a sentence must be so written that the punch word comes at the end. And if you haven't got this to work with, you just can't talk. In even the half time that I haven't got. (Laughter.) Nevertheless, I do think that once one makes those assumptions, there are some things that one can press--at least as to aspects which are not yet in the now growing, and, in my opinion, wisely and beautifully growing, literature. I don't think, for example, that that other piece of underpinning of any theory at all in the preparation of an appeal--the study of the particular tribunal before which the case is to come--I don't think that that has been pressed with anything like the power with which it ought to be pressed. I hear a great deal from the skillful advocates, when they get around to such a speech as I'm trying to make, about "sinking yourself in the facts." And "sinking yourself in the law of the case." I don't hear so much, even from the really good ones, about how you have to begin by "sinking yourself in the tribunal" to which you are to argue. And I am about to urge upon you that it is through your understanding of the tribunal that you understand what facts to look at and what part of the authorities and what shape of the authorities to build to handle the facts in your particular case. I say again: You begin before you get your case. Not only with a fundamental understanding of the language, but with an understanding of the appellate tribunals in your jurisdiction before whom you are about to argue. …