"Carswell — The Briefing and Argument of an Appeal"
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New York State Bar Association Bulletin, September, 1937

The Briefing and Argument of an Appeal

By William B. Carswell

Justice, Supreme Court, Appellate Division, Second Department

This writing is not intended to be exhaustive or all-inclusive. I shall give you the benefit of two vantage point-one that of an appellate judge in a busy court for ten years, and the other that of a lawyer active in appellate work for a still greater period; passing by Trial Term experience, both as a lawyer and as a judge, without attempt at pedantic display of learning and without ornate classical reference.

Court's Disposition of Appeals

In this Appellate Division, following argument or submission of an appeal, a report or informal opinion is written in every case. This report, with the record, briefs and argument, forms the basis for oral consultation with resultant decision. To keep down volume of decisions, few opinions are written in this department nowadays. We endeavor to confine opinions to cases which concern applications of new law, or novel applications of old law. Do not feel that your cause has been lightly considered if the decision slip is a mere note "affirmed without opinion" or "reversed" with a three line statement of the reason for the reversal. That three line reason probably has back of it a ten to forty or more page informal opinion dealing with every angle of the controversy. Be assured, therefore, that cases decided without reported opinion receive the same full consideration as those decided with published opinions.

We have no law's delay on appeal. Despite the vast increase in the quantity of litigation over a decade or two ago, every appeal noticed for argument at a given term is heard at that term. The decision is had, ordinarily, within a short time after argument or submission. The speed of an appellate court is the speed of its slowest member, just as the efficiency of a set of electric batteries is measured by the strength of the least effective unit. But, by and large, in practical effect, the variation is negligible.

The disposition of appeals is affected by the same factors which affect dispositions in Trial or Special Term. On appeal, of course, in many instances, contentions advanced below are abandoned and the scope of controversy generally narrows as the appeal progresses. This results from a more detached view of the importance of contentions which ensues after a trial and initial decision is had.



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