Jox, Marshall J.

English

Valparaiso University

Valparaiso University Law Review Volume 3 Number 2 Spring 1969 pp.315-317 Spring 1969 Herbert Monte Levy, How to Handle an Appeal Marshall J. Jox Follow this and additional works at: https://scholar.valpo.edu/vulr  Part of the Law Commons Recommended Citation Marshall J. Jox, Herbert Monte Levy, How to Handle an Appeal, 3 Val. U. L. Rev. 315 (1969). Available at: https://scholar.valpo.edu/vulr/vol3/iss2/10 This Book Review is brought to you for free and open access by the Valparaiso University Law School at ValpoScholar. It has been accepted for inclusion in Valparaiso University Law Review by an authorized administrator of ValpoScholar. For more information, please contact a ValpoScholar staff member at scholar@valpo.edu. BOOK REVIEWSHow TO HANDLE AN APPEAL. By Herbert Monte Levy, New York:Practising Law Institute. 1968. Pp. -.Anyone familiar with the materials published by the Practising LawInstitute (beginning with the pamphlets which appeared shortly afterWorld War II) will probably' attest to the general high quality of thepublications. How to Handle an Appeal is no exception.While the subject of appeals, other than works concerning themselvesexclusively with the practice in particular states or in the federal courts,has recently been treated by a small number of other authors, Levy'sapproach is quite unique.Roscoe Pound in 1941 published a monumental volume' in whichhe traced the development of appellate review in England and the UnitedStates from earliest times to the date of publication. In addition, hechronicled the most important improvements made in the present century.The book exhibits Pound's characteristic meticulousness to detail and isamply documented. Nevertheless, it is of scant assistance to an attorneyfaced with the tactical problems involved in an appeal today.In 1950, Frederick B. Wiener produced a valuable addition to theattorney's collection,2 but of the nearly 600 pages of text, only 45 aredevoted to a general discussion of appellate practice; about 200 pagesrelate to suggestions concerning brief writing and oral argument, and thebalance of the book consists of sample briefs. The latter are presented invarious categories, according to the chief questions involved, viz.: law andfact.The same general approach was taken by J. A. Appleman, whose textappeared in 1958.' About one-seventh of the book contains a discussionof brief-writing-the only subject considered-and the remainder ofthe volume consists of sample briefs employed in successful appeals in thecourts of last resort of every state, as well as in the court of appeals andthe United States Supreme Court.Levy, on the other hand, provides numerous suggestions concerningthe entire process of litigation from the trial itself to post-appeal devices.For example, the point is made that a trial may be conducted differentlyif an appeal is anticipated than if the case is expected to remain in the trial1. R. POUND, APPELLATE PROCEDURE IN CIVIL CASES (1941).2. F. WIENER, EFFECTIVE APPELLATE ADVOCACY (1950).3. J. APPLEMAN, APPROVED APPELLATE BRIEFS (1958).Jox: Herbert Monte Levy, How to Handle an AppealProduced by The Berkeley Electronic Press, 1969VALPARAISO UNIVERSITY LAW REVIEWcourt. At the other extreme, the advisability of requesting a rehearing ofthe court en banc is another device referred to. A checklist at the conclu-sion contains a virtual summary of the entire text and is extremely valu-able in and of itself.Any book whose scope is wide, and yet which includes such a myriadof specific comments, could only be written by one with very considerabletrial and appellate experience. Herbert Levy has participated in manytrials and, as staff counsel for the American Civil Liberties Union forseven years, has supervised hundreds of appeals. A member of the NewYork bar, he is also a lecturer for the Practising Law Institute, and is amember of several bar association committees at the national and locallevels. The author's experience is also evident in the nature of many ofthe suggestions, which, if noted, will tend to avoid the necessity of learn-ing through the trial-and-error method. Thus, the point is made that if aknowledgeable printer is available, it is preferable to use printing toreproduce the record, and that this method, although apparently moreexpensive than other duplicating techniques, usually proves to be other-wise.The author acknowledges the influence which the late Karl Llewellyn,that eminent theoretical realist, had had upon him. This influence isdemonstrated in many passages, as, for example, in Levy's statement that"half the battle may be won by your phrasing of the issues."4 The pointis well made that an appellee does not need to accept the phrasingemployed by the appellant, but may state the issues in a manner morelikely to elicit a favorable response by the appellate court.While some of the suggestions would seem to be self-evident(importance of making a record, or the advisability of reserving time forreply in oral argument), others are not necessarily in this category (thata fixed retainer fee is preferable to a contingency fee arrangement, orcharging on an hourly basis).Considerable space is devoted, as it should be, to the preparation ofappellate briefs and oral argument. The comments with reference to thebriefs must be read in conjunction with local statutes and rules. Theportion concerning oral argument is not quite so limited, for statutes andrules rarely go beyond matters of sequence and time. Hence there is muchmore latitude given counsel and no single approach is always to bepreferred. Parenthetically, it should be noted that the chapters pertainingto briefs and oral arguments can be helpful in a law school moot courtprogram.4. H. LEvY, How TO HANDLE AN APPEAL 918 (1968).Valparaiso University Law Review, Vol. 3, No. 2 [1969], Art. 10https://scholar.valpo.edu/vulr/vol3/iss2/10BOOK REVIEWSOne of the major problems confronting an attorney who wishes towrite a book on practice for nationwide use is that of coping with themany variations in statutes and rules in the different jurisdictions. Howto Handle an Appeal may not be the solution. One chapter containssuggestions for conducting an appeal to the United States Supreme Court,and another chapter relates to the United States Courts of Appeal. Allcitations, and they are relatively few, are to cases decided either byfederal or New York state courts. The forms in two of the appendices arethose to be used in these same courts. In the other two appendices theappellate rules for the United States Supreme Court and the court ofappeals, effective respectively in 1967 and 1968, are reproduced. Infairness, it must be stated that the author does, at intervals, advise thereader to consult local statutes and rules. In addition, three chapters(III, IV and V) involve what the author calls "technical problems." Inthese chapters there are reminders as to what to watch, and these re-minders are pertinent, no matter what the local rules are. These threechapters alone are worth the price of the book.In the Foreword it is stated that the book will enable an attorneywith limited appellate experience to conduct an appeal without assistancefrom counsel with greater experience. The author himself seems to makeno such claim, for in several places he himself advises consultation. Thisattitude is commendable, for in the last analysis no "aids" or "guides"can replace the necessity of exercising sound judgment. The same may besaid with reference to using printed forms in practice books without thenecessary consideration of their applicability.Even a casual reading of the book may fortify one's conviction that,although many steps have been taken in recent years to reform appellateprocedure to make it less complex, much still remains to be done. Somerules quite obviously must be imposed-it must be made clear to theappellate court what professedly went wrong in the trial court-but onecannot help but harbor the suspicion that some of the rules are designedto reduce the number of appeals without regard to the merits of the case.Perhaps Levy had no such objective in mind. But if this conviction isshared by enough of his readers who can translate their thoughts intoaction, the writing of the book could be doubly worthwhile.MARSHALL J. JOX**Professor of Law, Valparaiso University School of Law.Jox: Herbert Monte Levy, How to Handle an AppealProduced by The Berkeley Electronic Press, 1969

Herbert Monte Levy, How to Handle an Appeal

ValpoScholar

Valparaiso University Law Review 
Volume 3 
Number 2 Spring 1969 pp.315-317 
Spring 1969 
Herbert Monte Levy, How to Handle an Appeal 
Marshall J. Jox 
Follow this and additional works at: https://scholar.valpo.edu/vulr 
 Part of the Law Commons 
Recommended Citation 
Marshall J. Jox, Herbert Monte Levy, How to Handle an Appeal, 3 Val. U. L. Rev. 315 (1969). 
Available at: https://scholar.valpo.edu/vulr/vol3/iss2/10 
This Book Review is brought to you for free and open 
access by the Valparaiso University Law School at 
ValpoScholar. It has been accepted for inclusion in 
Valparaiso University Law Review by an authorized 
administrator of ValpoScholar. For more information, 
please contact a ValpoScholar staff member at 
scholar@valpo.edu. 
BOOK REVIEWS
How TO HANDLE AN APPEAL. By Herbert Monte Levy, New York:
Practising Law Institute. 1968. Pp. -.
Anyone familiar with the materials published by the Practising Law
Institute (beginning with the pamphlets which appeared shortly after
World War II) will probably' attest to the general high quality of the
publications. How to Handle an Appeal is no exception.
While the subject of appeals, other than works concerning themselves
exclusively with the practice in particular states or in the federal courts,
has recently been treated by a small number of other authors, Levy's
approach is quite unique.
Roscoe Pound in 1941 published a monumental volume' in which
he traced the development of appellate review in England and the United
States from earliest times to the date of publication. In addition, he
chronicled the most important improvements made in the present century.
The book exhibits Pound's characteristic meticulousness to detail and is
amply documented. Nevertheless, it is of scant assistance to an attorney
faced with the tactical problems involved in an appeal today.
In 1950, Frederick B. Wiener produced a valuable addition to the
attorney's collection,2 but of the nearly 600 pages of text, only 45 are
devoted to a general discussion of appellate practice; about 200 pages
relate to suggestions concerning brief writing and oral argument, and the
balance of the book consists of sample briefs. The latter are presented in
various categories, according to the chief questions involved, viz.: law and
fact.
The same general approach was taken by J. A. Appleman, whose text
appeared in 1958.' About one-seventh of the book contains a discussion
of brief-writing-the only subject considered-and the remainder of
the volume consists of sample briefs employed in successful appeals in the
courts of last resort of every state, as well as in the court of appeals and
the United States Supreme Court.
Levy, on the other hand, provides numerous suggestions concerning
the entire process of litigation from the trial itself to post-appeal devices.
For example, the point is made that a trial may be conducted differently
if an appeal is anticipated than if the case is expected to remain in the trial
1. R. POUND, APPELLATE PROCEDURE IN CIVIL CASES (1941).
2. F. WIENER, EFFECTIVE APPELLATE ADVOCACY (1950).
3. J. APPLEMAN, APPROVED APPELLATE BRIEFS (1958).
Jox: Herbert Monte Levy, How to Handle an Appeal
Produced by The Berkeley Electronic Press, 1969
VALPARAISO UNIVERSITY LAW REVIEW
court. At the other extreme, the advisability of requesting a rehearing of
the court en banc is another device referred to. A checklist at the conclu-
sion contains a virtual summary of the entire text and is extremely valu-
able in and of itself.
Any book whose scope is wide, and yet which includes such a myriad
of specific comments, could only be written by one with very considerable
trial and appellate experience. Herbert Levy has participated in many
trials and, as staff counsel for the American Civil Liberties Union for
seven years, has supervised hundreds of appeals. A member of the New
York bar, he is also a lecturer for the Practising Law Institute, and is a
member of several bar association committees at the national and local
levels. The author's experience is also evident in the nature of many of
the suggestions, which, if noted, will tend to avoid the necessity of learn-
ing through the trial-and-error method. Thus, the point is made that if a
knowledgeable printer is available, it is preferable to use printing to
reproduce the record, and that this method, although apparently more
expensive than other duplicating techniques, usually proves to be other-
wise.
The author acknowledges the influence which the late Karl Llewellyn,
that eminent theoretical realist, had had upon him. This influence is
demonstrated in many passages, as, for example, in Levy's statement that
"half the battle may be won by your phrasing of the issues."4 The point
is well made that an appellee does not need to accept the phrasing
employed by the appellant, but may state the issues in a manner more
likely to elicit a favorable response by the appellate court.
While some of the suggestions would seem to be self-evident
(importance of making a record, or the advisability of reserving time for
reply in oral argument), others are not necessarily in this category (that
a fixed retainer fee is preferable to a contingency fee arrangement, or
charging on an hourly basis).
Considerable space is devoted, as it should be, to the preparation of
appellate briefs and oral argument. The comments with reference to the
briefs must be read in conjunction with local statutes and rules. The
portion concerning oral argument is not quite so limited, for statutes and
rules rarely go beyond matters of sequence and time. Hence there is much
more latitude given counsel and no single approach is always to be
preferred. Parenthetically, it should be noted that the chapters pertaining
to briefs and oral arguments can be helpful in a law school moot court
program.
4. H. LEvY, How TO HANDLE AN APPEAL 918 (1968).
Valparaiso University Law Review, Vol. 3, No. 2 [1969], Art. 10
https://scholar.valpo.edu/vulr/vol3/iss2/10
BOOK REVIEWS
One of the major problems confronting an attorney who wishes to
write a book on practice for nationwide use is that of coping with the
many variations in statutes and rules in the different jurisdictions. How
to Handle an Appeal may not be the solution. One chapter contains
suggestions for conducting an appeal to the United States Supreme Court,
and another chapter relates to the United States Courts of Appeal. All
citations, and they are relatively few, are to cases decided either by
federal or New York state courts. The forms in two of the appendices are
those to be used in these same courts. In the other two appendices the
appellate rules for the United States Supreme Court and the court of
appeals, effective respectively in 1967 and 1968, are reproduced. In
fairness, it must be stated that the author does, at intervals, advise the
reader to consult local statutes and rules. In addition, three chapters
(III, IV and V) involve what the author calls "technical problems." In
these chapters there are reminders as to what to watch, and these re-
minders are pertinent, no matter what the local rules are. These three
chapters alone are worth the price of the book.
In the Foreword it is stated that the book will enable an attorney
with limited appellate experience to conduct an appeal without assistance
from counsel with greater experience. The author himself seems to make
no such claim, for in several places he himself advises consultation. This
attitude is commendable, for in the last analysis no "aids" or "guides"
can replace the necessity of exercising sound judgment. The same may be
said with reference to using printed forms in practice books without the
necessary consideration of their applicability.
Even a casual reading of the book may fortify one's conviction that,
although many steps have been taken in recent years to reform appellate
procedure to make it less complex, much still remains to be done. Some
rules quite obviously must be imposed-it must be made clear to the
appellate court what professedly went wrong in the trial court-but one
cannot help but harbor the suspicion that some of the rules are designed
to reduce the number of appeals without regard to the merits of the case.
Perhaps Levy had no such objective in mind. But if this conviction is
shared by enough of his readers who can translate their thoughts into
action, the writing of the book could be doubly worthwhile.
MARSHALL J. JOX*
*Professor of Law, Valparaiso University School of Law.
Jox: Herbert Monte Levy, How to Handle an Appeal
Produced by The Berkeley Electronic Press, 1969


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