Statement of the Questions to Be Argued By a Counsel in Court

The greatest art in the argument of an appeal lies in the statement of the facts of the case. Counsel should know every fact in all of its ramifications and be able to turn to it in the record without fumbling. Heaven forbid, however, that he should attempt in the statement of facts to tell all that he knows of what he should know! He must be able to extract from the record the relatively few facts that are significant and controlling, and to state them in language and in a manner that will capture the attention of the court. It was said of William Murray, better known as Lord Mansfield, the greatest of the English judges, that when he finished the statement of facts in a case, it seemed quite unnecessary to argue the law.

Generally the facts should be summarized in chronological order. Always remember that the court does not know the facts of a case-indeed, the court is not interested in the facts except for the ephemeral purpose of deciding the case-and no effort should be spared to make sure that it has the correct view of them. Counsel will search far without finding any better example of how to present the facts of a case than may be found in some of the great opinions of Chief Justice Hughes, who both at the bar and on the bench had the rare gift of marshalling his facts so that they seemed to be marching to martial music at his direction. A study of his opinions will reveal a scarceness of adjectives and adverbs, the vitality of his verbs, and his precision in the use of prepositions and conjunctions.


Not only must counsel know every fact, all of its implications, and where to find it in the record, not only must he be able to state the pertinent facts succinctly and attractively, but he must never under any circumstances misstate a fact. And if an adversary should ever accuse him of misstating a fact, he must go to all lengths in meeting and demolishing the challenge.

Sometimes the challenge may be facetious. The statement of the questions to be argued and the presentation of the facts, important though they are, are merely introductory to the argument of the law. The argument of the law of a case is the climax of an appeal. Every appellant must face up to the fact that he has failed below, either through the fault of the trial judge, the jury, or himself. He has the laboring oar and he has to row upstream, and he should frankly recognize it by the earnestness of his manner, albeit restrained by courtroom decorum. The respondent, on the other hand, is seeking a different position, at least until the appellant has had his day in court. He has won his prize below and he is merely seeking to save it.

How best can counsel argue the law of a case on the appeal? Not by reading the brief, nor by quoting at great length from innumerable cases, however pertinent. Rather he will dwell on the controlling rules of law and the principles underlying these rules. In discussing any decisions cited in his brief he should summarize the facts and state the holdings concisely, giving references to the pertinent pages of his brief, but he should not quote from them, save for short, pertinent excerpts. He will also give the court the benefit of the learning of the great writers on the subject under discussion and of the Restatement of the Law when it is avail-able, but again without lengthy quotations. His argument at its best will move forward with logical precision and the successive steps in the development of his thesis will never be lost in a maze of citations and quotations. While developing his own case affirmatively, he will step by step be answering his adversary's contentions. His reasoning will always be as inseparable from the facts of his case as are the two sides of a coin. He will know a great deal more about the law of his case than he possibly can hope to tell the court in the limited time allowed for his argument. He will be as prepared to answer all questions that may be put to him on the law as he is on the facts. Particularly he will know all of the facts of each of the cases cited, not only in his own brief but also in his adversaries. Nothing can be more embarrassing to counsel than to have to admit he does not know the facts of a case he has cited in his brief.

Counsel should hesitate to rest his case on mere technicalities; however strongly embedded they may be in earlier decisions. He should never feel safe unless he can and does demonstrate the reasonableness and the utility of the rule he is advocating. More and more it is becoming important to tie the law of the case to its social environment and to show its relations to the assumptions of the age in which we live, and counsel should be prepared to do this in telling phrases that will serve to drive home the justice of his case.

Be brief, then, in your argument; argue rather than quote. Stick to the facts of your case. Tie your argument to the great underlying principles of the law. Do not neglect to demonstrate the utility of the law you are advocating. And remember that even at its best, listening to an argument is arduous work. Lord Denman was speaking out of a lifetime of experience when he said: "Remember also to put forward your best points first, for the weak ones are very liable to prejudice the good ones if they take the lead. It would be better advice to say "Never to bring them forward at all, because they are useless."

What has been said about the posing of the questions to be argued, the statement of the facts of the case, and the argument of law may have created the impression that the oral argument is simply a distillation of what appears in the brief. Nothing could be further from the truth, as becomes apparent when one adds to the picture the presence of opposing counsel and the judges on the bench. Professor George Herbert Palmer in his little masterpiece, Self-Cultivation in English, adjures us to "Remember the other person . . . every utterance really concerns two. Its aim is social. Its object is communication."

The advocate will do well to always keep the judges in mind in arguing his appeal. It is their minds he is aiming to move, and yet he knows that there is nothing that would so quickly defeat his cause as the slightest attempt to prejudice their minds, to gloss over any of the pertinent facts of a case, or to ignore any of the earlier opinions of the court, however unfavorable they may be. Indeed, he owes the duty to the court as a matter of ethics to disclose to the court any decisions adverse to his position of which opposing counsel is apparently ignorant and yet which the court should consider in deciding the case. Some lawyers flatter themselves on their ability to appeal to what they, off the record, term the "whimseys" of the judges.

It is much more to the point to reflect on what is going on in the minds of the judges. This you can readily do by putting yourself in the judges place and giving thought to how you. If you were a judge, would be affected by this or that alternative presentation of the matter. Yet this is a thought that does not by any means occur to every counsel. In thinking of what you would do if you were judge, moreover, you should think not merely of what would be going on in your mind as you sat on the bench, but even more of what effect the argument would have on you in the discussions in the conference room and in the writing of the opinion.

It is not the glitter of the courtroom argument that counts in the ultimate decision of an appeal. There are, of course, various types of judicial minds. Some judges are much given to standing by the existing order even where others think it has outlived its usefulness. Then again there are some judges who are much more influenced by the letter of a decision than they are by the reason that underlies it and properly controls it. Still other judges realize that the law is forever seeking to escape from the technical or irrational limitations of its earlier limited experience to a greater usefulness based upon a frank consideration of things as they actually are. Then, too, much depends on the particular field of law under review; every court is more open to new applications of old principles in certain fields of the law than in others. Thus it is generally easier to conform the law to new situations in the field of commercial transactions than it is in the law of real property, or in meeting new social conditions in the administration of criminal justice than in changing the law of trusts where the rights of beneficiaries are so frequently involved. Aside from knowing the type of judicial mind he is addressing, the more a lawyer knows of the individual judge the more persuasive his argument is likely to be, not so much by knowing what to say as what to avoid saying.

Even more fundamental than any of these considerations, and one that is all too often ignored, is the fact that until the court has read the briefs or heard the oral argument, it has not the slightest notion of the questions at issue or of the controlling facts. Indeed, we may go further and say that except in the fields in which the particular judge may have specialized, he is quite unlikely to know the law even of his own state in complete detail, though he should be expected to have grasped its general outlines and its underlying principles. Hence, the experienced advocate will not hesitate to state the questions at issue forcefully, to sketch the controlling facts in such a way that they cannot be misunderstood, or even to state his views of the law with conviction, not in any sense of 'telling the court' but simply by way of imparting to a bench of interested judges the results of his thoroughgoing study of the controlling principles of law. His argument to satisfy every type of judicial mind should run the gamut from particular rules and decisions to the statement of underlying principles and should conclude with a skillful summation of his fundamental propositions of law keyed to the pertinent facts of his case.

There is one difference between the advocate's point of view and the judge's. Unconsciously, the advocate seeks the strength to present his case effectively; the prayer of the appellate judge is for light-light and not heat. The advocate will do well to remember, too, that the longer the apprenticeship served by a judge at the bar in the trial of cases and the argument of appeals, the more likely he is to be influenced and really moved by what he hears rather than what he reads, a consideration that can only serve to inspire counsel to his best effort in the appellate court. The advocate should keep in mind at all times that judges are not usually bookish fellows who have lost touch with the actualities of life. In their work on the bench they have to deal practically with everyday problems very much as they did when they were practicing lawyers.

Counsel will do well to respect the court's antipathy to contradictions in statements of facts. They irritate the mind of the trained judge out of all proportion to their intrinsic significance. Chief Justice White is reported to have said that if a lawyer stated that an incident occurred in March and a few minutes later mentioned it as happening in May, he felt as if he had been stabbed in the mind. After such an intellectual stabbing, can the appellate judge be expected to give credence to counsel's presentation of the law? Nothing can be more damaging to an argument or to counsel's standing with the court than for him to make a statement which the subsequent examination of the case by the court will show to be untrue. On the contrary, if you have a troublesome fact in your case or if some earlier decision of the court stands in the way of your argument, it is often better to admit it frankly rather than to attempt to conceal it. You may be sure that your adversary will spare no pains to exhibit it at its worst, and frank discourse of your difficulty may enlist the help of the court. Lord Macmillan explained this psychological process with his customary felicity as "the instinct for rescue":

When you know that your case is confronted with a serious difficulty in the shape of an awkward passage in the evidence or an embarrassing predicament, do not shirk it. Read the awkward passage with all emphasis or quote the authority without flinching, and point out the difficulty which it creates for you. You will almost invariably find that the first instinct of the judge is to assist you by pointing out that the evidence is less damaging to you than you represented or that the precedent is on examination distinguishable. The court is favorably disposed by the absence of all concealment of the difficulty and is attracted by the very statement of the difficulty to address itself to the task of solving or alleviating it. A good man struggling with adversity always makes an appeal to the judicial as well as to every other generous mind! A solution which the judge finds for a problem, too, is always much more valuable to the advocate than one which he himself offers to the Court, for the Court is naturally tenacious of its own discoveries and your opponent who ventures to challenge its solution finds his adversary not in you, but in the Court-a much more serious matter!''