Advocacy Before the United States Supreme Court (1951)

invitation to deliver this lecture is a signal honor, and the temptation is to respond with a discourse upon some tempestuous issue of world-wide reverberations. But it will encounter less competition and be more useful to the profession to choose a workaday subject on which I have some experience to support my opinions and you have personal experience to warrant criticising them. Let us consider together the problems which confront a lawyer when his case reaches its journey's end in the Supreme Court of the United States. More then ten years ago, Mr. John W. Davis, in a wise and stimulating lecture on The Argument of an Appeal, shared with our profession the lessons of his own rich experience. He suggested, however, that such a lecture should come from a judge--from one who is to be persuaded, rather than from an advocate. With characteristic felicity, he said: Who would listen to a fisherman's weary discourse on fly-casting ... if the fish himself could be induced to give his views on the most effective method of approach? (1) I cannot add to the available learning on this subject. (2) I can only offer some meditations by one of the fish. Let me confess that, when dangling bait before judges, I have not always practiced what I now preach. Many lessons that I pass on to you were learned the hard way in the years when I was intensively occupied with presentation of government litigations to the Court. And if I appear to overrate trifles, remember that a multitude of small perfections help to set mastery of the art of advocacy apart from its counterfeit--mere forensic fluency. Is ORAL ARGUMENT DECISIVE? Lawyers sometimes question the value of the relatively short oral argument permitted in the Nation's highest Court. They ask whether it is not a vestigial formality with little effect on the result. In earlier times, with few cases on its docket, the Court could and did hear arguments that lasted for days from such advocates as Webster, Pinkney, and Luther Martin. Over the years the time allotted for hearing has been shortened, but its importance has not diminished. significance of the trend is that the shorter the time, the more precious is each minute. I think the Justices would answer unanimously that now, as traditionally, they rely heavily on oral presentations. Most of them form at least a tentative conclusion from it in a large percentage of the cases. This is not to say that decisions are wholly at the peril of first impressions. Indeed, deliberation never ceases and there is no final commitment until decision actually is announced. It is a common experience that a Justice is assigned to write an opinion for the Court in accordance with a view he expressed in conference, only to find from more intensive study that it was mistaken. In such circumstances, an inadequate argument would have lost the case, except that the writing Justice rescues it. Even then, his change of position may not always be persuasive with his colleagues and loss of a single vote may be decisive. bar must make its preparations for oral argument on the principle that it is always of the highest, and often of controlling, importance. WHO SHOULD PRESENT THE ARGUMENT If my experiences at the bar and on the bench unite in dictating one imperative, it is: Never divide between two or more counsel the argument on behalf of a single interest. Sometimes conflicting interests are joined on one side and division is compelled, but otherwise it should not be risked. When two lawyers undertake to share a single presentation, their two arguments at best will be somewhat overlapping, repetitious and incomplete and, at worst, contradictory, inconsistent and confusing. I recall one misadventure in division in which I was to open the case and expound the statute involved, while counsel for a government agency was to follow and explain the agency's regulations. This seemed a natural place to sunder the argument. …