| "Carswell — The Briefing
and Argument of an Appeal" |
|
When you indicate the facts, do not send the copy off to the printer in that state. Many briefs submitted indicate that is precisely what is done. Revise your dictation brutally. If a dictated statement of facts cannot be revised so as to eliminate 40 percent of the verbiage the briefer is one of two extremes. He is either too poor a craftsman to write a brief because he does not know how to condense dictated matter and eliminate prolixity; or he is so sententious and concentrated in utterance as to be too valuable to devote his time to brief writing. Such a genius should not follow the law. After the first revision of the facts has taken place, a second revision should take place with a further reduction of volume of another 10 per cent. Rudyard Kipling's practice is confessed by him in his autobiography, published last month. He subjected all his writings to at least three drastic revisions, with an appreciable lapse of time between each, all to the end that he might blot out superfluous wordage. When your revisions have ended, you should have a brief, clear recital of the facts, with the disputed facts, in most instances, segregated from the undisputed. The recital should follow the principle of climatic progression in order to intensify its force and acceptability. It has been said of a celebrated lawyer, that he stated his facts so clearly and so carefully confined himself to the essentials, that his main fact recital was more than half his argument on the law. There is no doubt that if your facts are well stated more than half your law argument is completed, since you are addressing a tribunal trained to recognize as you progress the controlling effect of pertinent principles of law on your recital of the facts. No statement of fact should be given without there being inserted after it the folio number in the record where it may be found. No fact should be stated which is not in the record. A good practice with regard to designating the folio is merely to put in brackets the number of the folio is merely to put in brackets the number of the folio without putting in the syllable "Fol." When the bracketed figure of a citation is given, folio is understood. The practical effect of this method is that you get better receptivity from the mind of the reader of the brief, since the syllable "Fol." in constant repetition has a retarding effect upon mind reception. To test this, take the same matter and put it in two paragraphs. Read one with a lot of folio citations in it having the syllable "Fol." interspersed throughout and read another form of the same paragraph with the syllable "Fol." eliminated and merely the number of the folio inserted in brackets and see how much easier it is to grasp the one with the syllable "Fol." eliminated.. If the appeal is from a Special Term judgment based on facts resolved on disputed oral versions and you are an appellant do not state the facts m disregard of the findings against you. Be a realist and meet the situation with which an adverse finding confronts you. If the appeal is from a judgment based on a jury's verdict and you are an appellant, do not state facts in disregard of those imported by the jury's verdict. Meet the dilemma which confronts you by giving a fair statement of the conflicting versions of the facts, stating first those permissibly accepted by the jury. Otherwise you will be in the position of seeming to argue from an unsound premise. You now have your facts stated. Do not attempt to write any point, on either the facts or the law, until you have finished your revision of your statement of facts. This concentrating on one phase of your brief at a time before taking up your points will inevitably tend towards accuracy, clarity and brevity and avoid irrelevant law point excursions. In special instances, except for the barest outline, to avoid unnecessary repetition, the pertinent facts may be given in a law point. |
 The Historical Society of the Courts of the State of New York |
