Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1873-04-22
important suggesttOns to tbe bar


cidL, for the benefit of the bar, and in aid OF
the Court, the following outline of what
Judge Emmons said at Cincinnati in con-
nection with his judgmen; in the patent
case of "The Union Paper Bag Company
VS.. Nixon:
"The Judge appended to bis opinion the
following points Of interest to the legal pro-
fession, and to litigants generally, as to the
proper method in which the facts in dispute
should be presented when submitted for
adjudication:
"We desire to submit, in connection with
this case, some remarks upon the unfortu-
nate mode in which arguments, found to be
learned and full when thoroughly studied,
are frequently framed. This occasion is
selected, not because those before us are
eminently subjec5 to criticism. On the con
tIary, the labOred brief of the defendants
counsel goes far TO comply with the request
ade at the hearing. The addition of the
headings and divisions essentially aided in
vestigstion. The form of the compartments
brief, although not unusual, is in less &C
ceptable and readily available form. L is
butia stenographic report of his able oral
argument, made without notes Of any kind.
1.-THE greatest embarrassment is often
produced in this class of cases by the dis
cursive manner il which distinct subjects
are treated. We respectful ly submit to the
Bar that long treatises should contain,in all
instances, the proposed order of
thei r agument. If it is in q marked de-
gree exceptional, then some notice and JUS
titication of the mode of treatment should
be included. If claims are considered out
Of the order in which they occur, for some
augunentatlve purpose known only to
counsel, and which can be discovered by the
Court only when the entire subject has
been mastered, and perhaps not then, it
would be great assistance to have it sug-
gested in the outset. To commence new
subject with four or five pages Of criticism
of either legal principles, facts or the mo-
tives of parties, without any Introductory
intimation of how they are to be utilised in
argument, Omits the main stimulant which
court has TO discover what is intended.
appropriate divisions are often made in
terms 50 general as to be nearly useless.
The facts of this case are used by way of
illustration only, and not because the ar
guments in it are subject to this particular
fault. In discussions of great length such
announcements are frequently made as,
'The Pettee patent the Rice patent etc.
But what is to be said about them is not
indicated by the titles. Whether infringe
ment, novelty, imperfect specifications, new
matter, or legal doctrines, is not said. This
is certainly better than the not wholly alb
Gent infliction Of hundred pages without
break, We suggest, however, that if they
were somewhat like the following, they
would greatly aid the Court: 'The Specif
cations of the Rice patent are Insufficient
'I'he reissue of the Rice patent is cold be-
cause 1t contains Tel0 matter sThe Rice
patent is dntedGted' 'The Rice patent is
not infringed by the Morgan machine
Where many distinct propositions are con-
sidered, varying in importance upon the
result, their statement should clearly distin-
guish each from its fellows. Just as nee
esssrily they should be followed By equally
descriptive Subdivisions, announcing the
subordinate positions of law and fact which
will be urged in their support. Under the
head, 'The specifications of the Rice patent
are Insufficient it might be said:
l. "The cam and mechanism for impart-
ing the reciprocating motion to the rollers
for forming the bottom of the bag are
wholly omitted.
2. "No device is described to compel the
severing blade to descend with sufficient
force 10 be operative.
"And thus, until the reasons in suo-
port of the genera, allegation of insufficient
specifications are exhausted. They should
invariably be considered in the order of
their announcement, unless the court is
apprised of different treatment. And, we
add, that when such extended discussions
are submitted, we shall require the pages
inclusive where the subjects, both general
and subordinate, are treated, to be indi-
Gated. This might be done perhaps in pen
Gil, or by pen after the arguments are print
ed. The mode is immaterial, so that points
IL ought verify of examination can be
found without ourselves making an index
and undertaking the labor of frequent re.
perusals. This is not a matter of choice,
The court is not organized with reference to
The performance of any such duty as the
form of present action adopted in so many
cases involves.
"GOmmOn-place as much of this may
seem, its utter disregard by learned gentle
men of the Bar, wholly competent to avoid
The fault, and committing it only because
they have not sufficient subordinate educa-
ted assistants, produces the greatest embar-
and not unfrequentlY compels,
for want of time, judgment without thor
Ough comprehension OF their briefs. La
bored discussions of course must often oc-
cur, on points upon which, in the accident
Of Courts knowledge, no discussion what
ever is required. The Court should be en-
abled, without reading hundred pages, to
know what is argued, and then to select for
examination, first, such points az are liz
ionbt, and which ia its opinion dispose of
he cause. 1t is a matter of great difficult |
y, but if no other remedy can be found, it |
will be sought in a rule which will compel |
he adoption of some general formula ap- |
,roximating what has been suggested.
ave sbsll hereafter, in all eases, insist, |
where complicated cases with such yolumi- |
nous records are submitted, that the briefs |
'e fled a. least two days before the argu-
nen5. This will enable the Court TO dis
use of the case Immediately after its con-
fusion. When counsel take months to sub
nit printed arguments, the oral presents-
ION becomes measurably useless"