Hyde, Laurance M.

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Washington University St. Louis: Open Scholarship

Washington University Law Review Volume 1953 Issue 4 1953 Review of “Successful Appellate Techniques,” By John Alan Appleman Laurance M. Hyde Missouri Supreme Court Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview Recommended Citation Laurance M. Hyde, Review of “Successful Appellate Techniques,” By John Alan Appleman, 1953 WASH. U. L. Q. 478 (1953). Available at: https://openscholarship.wustl.edu/law_lawreview/vol1953/iss4/10 This Book Review is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact digital@wumail.wustl.edu. BOOK REVIEWSSUCCESSFUL APPELLATE TECHNIQUES. By John Alan Appleman. Indian-apolis: The Bobbs-Merrill Co., Inc., 1953. Pp. vii, 1081. $15.75.In a recent address to the New Jersey Judicial Conference, Chief JusticeVanderbilt of the New Jersey Supreme Court said:The Supreme Court and the Appellate Division are still harassed bymany inadequate briefs and a considerable number of poor arguments.Where we have to do the work that counsel should have done on hisbrief and in his argument in order to do justice in a particular caseand to make good by our individual research his shortcomings, we arenot only called upon to do work that is not properly ours but we aredeprived of the benefit of the argument of opposing counsel as to suchnew matter.'This situation is not confined to New Jersey and, therefore, this bookserves a definite need.This book contains helpful suggestions about briefs and oral arguments.It properly emphasizes the importance of adequate legal research by thelawyer so that he becomes familiar with the development of the principlesinvolved in any case which he is presenting. It suggests reading law reviewarticles and textbooks to get a general view of the field. (This is also agood idea for judges while writing opinions in less familiar fields.) Theshotgun approach of briefing many minor errors is condemned and thegood advice given that this "takes the sharp focus of attention away froma matter of major concern."2 Certainly all judges will agree. On this sub-ject, Mr. Justice Rutledge once said:When a judge finds a brief which sets up from twelve to twenty orthirty issues or "points" or "assignments of error," he begins to lookfor the two or three, perhaps the one, of controlling force. Somebodyhas got lost in the underbrush and the judge has to get him-or theother fellow-out .... Though this fault has been called overanalysis,it is really a type of underanalysis.3The book also points out the necessity for frankness and for recognition olthe strong points of the opponent's side of the case. The author, believingthat "actual examples may prove more fruitful than mere lectures,"'4 hasincluded briefs and abstracts used by him in actual cases.This book is based mainly upon Illinois practice in the preparation of therecord on appeal, although it also shows what is required in the UnitedStates Court of Appeals and the United States Supreme Court. The sam-ples of abstracts of the record set out (with narrative statements of thetestimony) emphasize to this reviewer the improvement in Missouri ap-pellate practice made by our new code in requiring a complete transcriptof the evidence in the lower court to be sent to the appellate court (unless1. Vanderbilt, The Record of the New Jersey Courts in the Fourth YearUnder the New Constitution, 7 RUTGERS L. REV. 317, 318 (1953).2. p. 559.3. Rutledge, The Appellate Brief, 28 A.B.A.J. 251, 253 (1942).4. p. iii.Washington University Open ScholarshipBOOK REVIEWSthe parties agree otherwise), rather than a narrative statement of thetestimony,5 which usually gives the appellate court a distorted view in placeof the actual picture of what occurred at the trial. Is there any more uselesswork to require of a lawyer than to change questions and answers to anarrative? Having worked under both systems, this reviewer is convincedthat the appellate court should have the testimony in question and answerform to see just how it was received in the trial court. Narrative statementswere necessary in times before we had court reporters, when the recordof the evidence had to be prepared from the lawyers' notes. Modern re-porting methods have given us the opportunity to have the exact record andthat is what the appellate courts should have.The author, in his discussion of brief writing, stresses "sincerity" andwell states that, "[n]o contention will bear the close scrutiny of intelligentmen which is not advanced with complete honesty."6 He warns againstinaccuracy, exaggeration and loss of personal or professional dignity. Thereis a good discussion of how to create an interesting brief, including the useof short clear sentences, short paragraphs and use of explanatory headingsfor subdivisions of the brief. The importance of charts, diagrams and photo-graphs is noted. There is also a warning against use of such terms assupra, infra and ibid., without repeating citations, as they cause waste oftime and extra work for judges to find citations. The samples of briefsset out in the book are those used in the Illinois courts, the United StatesCourt of Appeals and the United States Supreme Court. Of course, it isessential for lawyers to read and follow the rules of the court in which thecase is to be heard before preparing briefs.The author gives good advice about the preparation of the statement offacts in the brief, advising that the key issues of the case must first beanalyzed and the evidence presented in a non-argumentative manner tospotlight those issues. He also includes a statement about what not to do:The average young attorney confronted with an appeal makes adiligent effort to comply with the court rules. But, led astray by en-thusiasm, he may give a highly argumentative presentation of the facts,omit essential elements of the case, or resort to bitter criticism of thelower court or of his adversary. Upon having a brief or two stricken,or losing an appeal, he learns that a proper presentation is essential.Then, in striving to present all of the facts, he laboriously details eachallegation of the pleadings; then the plaintiff's evidence, witness bywitness, in chronological order; then the defense evidence; finally therulings of the court and matters leading to the appeal. As a result, thepresentation is boring apd leaves no impression of rightness or wrong-ness upon a perusal of the facts. 7The author also gives this important advice:Then one comes to the disputed or unfavorable facts-and it is herethat one of the most glaring types of error occurs with great frequency.Many attorneys tend to omit wholly a discussion of their adversary'scase, or that evidence which is difficult to explain away.It is twice as damaging to have one's adversary point out the unfair-ness of such a presentation and then to dwell in great detail upon the5. Mo. CoDE Civ. P. § 135 (a); Mo. REv. STAT. § 512.110 (1949).6. p. 563.7. p. 584.https://openscholarship.wustl.edu/law_lawreview/vol1953/iss4/10WASHINGTON UNIVERSITY LAW QUARTERLYomitted evidence. It is far better to give all of the facts adequately inthe original statement. This pulls the sting. Even a rehash by oppos-ing counsel will then be ineffective. For like reasons, exaggeration ofthe evidence or use -of hyperbole, the resort to conclusions, argument,screaming, or hysteria help to blaze a trail to disaster.8There is a good discussion on preparing assignments of error, and thepropositions of law supporting them which are variously known in differentjurisdictions as "Questions Presented," "Points and Authorities," "Pro-positions of Law," and "Points Relied On." The author notes that this partof the brief varies tremendously from one, jurisdiction to another. TheMissouri Supreme Court has attempted to simplify briefs by authorizingassignments of error (called allegations of error in our new code) 9 to becombined with "the points relied on."'1 When Rule 1.08 (a) (3) is properlycomplied with the "points" constitute a short and concise outline of thepart of the brief called "an argument." On this subject the author givesthe following good advice:Never start off, if it can be avoided, with any abstract statement oflaw. In fact, always avoid, where possible, abstract statements forany heading. It is far more forceful to tie the statement down to thefacts and circumstances arising in the case.".Examples are included to show how this may be done.The author says of the Argument in the brief:It is the development of the factual matters previously set forth innonargumentative fashion; it is the development of the legal principlespreviously enunciated as applied to those facts; it is the developmentof the issues in the case brought to the highest point of persuasionwhich advocacy can develop. 2 ;He stresses brevity, clarity, logic and calmness. Appellate judges willheartily agree with his statement as to quotations:Since the argument is designed to produce conviction, rather thanto demonstrate the exhaustiveness of counsel's research, it should besimple, logical, and persuasive. It should not be studded with frequentquotations of any type, which may be relevant but which serve to in-terrupt the train of thought. Quotations from decisions or from anyother source should be few in number-and they should be used onlywhen so pertinent and powerful that it would be folly to omit them.13Judges prefer to read the controlling cases as a whole and not piecemealfrom long quotations out of context in a brief.Mr. Appleman prefaces his discussion of the oral argument with thiscriticism of the arguments of many lawyers.Frequently, they are not wholly familiar with the record in the case.They organize their material badly; the approach is non-objective; theyseem unable to select that which is material and to discard that whichis trivial. They have not analyzed the law and its history, so as tounderstand the immediate problem in its proper perspective.... Fre-quently, arguments are started in the middle, instead of acquaintingthe court first with the controversy. Statements of facts are either8. p. 587.9. M o. REV. STAT. § 512.160 (1949).10. Mo. SuP. CT. RULE 1.08 (a).11. p. 603.12. p. 610.13 p. 616.Washington University Open ScholarshipBOOK REVIEWStoo skimpy or boringly laborious. The counsel quote from cases ingreat detail. They speak badly; they mumble or they shout; they readthe written briefs or a canned speech; they are inflexible and unadapt-able. In short, neither do they shed light upon the controversy nor dothey bring persuasion to the minds of the justices.14The importance of oral argument is emphasized and it is wisely saidthat "oral argument is the only time one will ever receive the full attentionof the entire court." 15 The importance of thorough preparation of the oralargument cannot be overemphasized. The author truly states: "[O]nemust know his record almost verbatim if he hopes for success upon ap-peal."16 He suggests index tabs on records for quick reference, writingout the problems involved to get them in proper perspective, checking formost recent decisions, thoughtful consideration of the facts and prepara-tion of notes on index cards. He warns against.reading to the court, whichis of course the surest way to lose its attention. He includes examples ofindex cards used in oral argument to show how an outline of the pointsmay be concisely stated. He admonishes:Always state the facts fairly. Do not withhold or secrete that whichis unfavorable, nor distort the evidence in the record. Not only is thereaction of the court extremely bitter when the concealments or mis-representations are pointed out by one's adversary, as is certain to bedone, but the recollection of such conduct remains with the court tothat lawyer's prejudice in future cases. 17He also says:If one represents the appellant, he must be willing to face the crystalclear fact that he lost the case below. This is no secret, also, to thecourt of review. Therefore, one should plunge into this matter directlyand tell the court why the case was lost-the reasons therefor and theanswers to those questions.If one represents the appellee, he should make clear immediately whyhe won the case below, if it is possible to do so-or, perhaps, the rea-sons why appellant was unsuccessful.' sAs to questions by the judges, the author says:[A]ny advocate should welcome questions from the court. Heshould fear the silent court, lest silence prove to reflect disinterest. In-terrogation demonstrates that the court is alert and interested in thediscussion. Also, it is far better to have the court ask questions whenone has an opportunity to give the exact answer than to have thejustices raise such questions in the judicial conference to follow, whenthe advocate is not present to assist.' 9This book will be most valuable to Illinois lawyers since so many of thespecific examples of briefs and abstracts set out follow the requirementsof the Illinois Courts. However, the general principles discussed, especiallythose concerning "preparation of the brief and the oral argument are uni-versally applicable. As the author truly says: "[S]ome thoughtful studyof fundamental principles may help to increase his chances for a proper14. p. 995.15. p. 996.16. p. 1003.17. p. 1020.18. p. 1022.19. p. 1033.https://openscholarship.wustl.edu/law_lawreview/vol1953/iss4/10WASHINGTON UNIVERSITY LAW QUARTERLYpresentation of his case."20 Reading this book will give one a good op-portunity to make this thoughtful study; the results should be beneficialboth to lawyers and to appellate courts.HON. LAURANE M. HYD4MARITAL PROPERTY IN CONFLICT OF LAWS. By Harold Marsh, Jr.Seattle: University of Washington Press, 1952. Pp. xi, 263. $4.50.A not-inconsiderable segment of the subject matter of conflict of lawswhich has hitherto received scant attention from writers in the field andall too frequently has been well-nigh ignored by members of the bar inhandling the preparation and trial of a variety of cases is put under thesearching examination of Mr. Marsh in his new work Marital Property inConflict of Laws.Mr. Marsh has succeeded in keeping his work in a physically man-ageable form, holding down the size of his treatise to what for a law bookis a scant 250 pages, but due to his almost epigrammatic style and verycareful groundwork in spelling out the precise scope of the work, and incarefully defining the terms he uses throughout the book, he has succeededin producing a volume which succeeds not only in reviewing the status quoof the laws bearing on marital property in both the common law andcommunity property states, but also in delineating the choice of law rulesused in fact, and available in theory, in courts of the several states. Norhas the author settled for a mere recitation of black-letter law, whichparenthetically would be welcome in many a law office beset with some ofthe more vexatious problems in the field, but on the contrary, he hassupplied his reader with a critical analysis of the three major nuances ofthe choice of law problem.It is not the intent of this reviewer to agree or disagree with Mr.Marsh's conclusions on the merits of the choice of law rules that headvocates; time and the courts will pass that judgment. Rather I shouldlike to call attention to what I consider to be an extremely valuablecontribution made by the author to the literature in this field, namely hisaccurate definitions of the various concepts which are to be discussedthroughout his treatise. The clarity of Mr. Marsh's classification of thevarious types of legally recognized and legally protected rights andinterests is a good example of the lucidity of thought and expression whichalone would make the reading of his work a rewarding experience. It isfairly safe to say that hitherto courts have lumped together such a varietyof rights, interests, privileges and/or immunities which belonged orappertained to one or both spouses, that the term "marital property"has almost degenerated into an amorphous concept roughly connotinganything owned by a married person. This lack- of precise definitionand lack of incisive separation of the various types of marital property20. p. iii.t Judge, Supreme Court of Missouri.Washington University Open Scholarship

Review of “Successful Appellate Techniques,” By John Alan Appleman

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Review of “Successful Appellate Techniques,” By John Alan Appleman

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