An appropriate peroration.

• Jurisdiction: United States

Section 126. An appropriate peroration.—An appellate advocate's closing words are important, and they should leave an impression of combined strength and dignity. They must be more than simply a shouted conclusion while the judges are folding up their briefs and turning to the papers in the next case. And, although an appellate court can be moved, it is not a jury; the scope for emotional impact is distinctly limited when the case is on appeal.

Fashioning a proper peroration presents a difficult problem in any circumstances, and a particularly difficult one when counsel's time has been so taken up with questioning that his planned ending no longer serves. All that can usefully be ventured are the following considerations:

First, you must have some sort of an ending in order not to leave your argument up in the air, and to avoid tacking on the purely formal "We therefore submit that the judgment below should be reversed." Come up with a conclusion in a nutshell, at the very least. For instance:

The result is that, without pausing to repeat or even to sum up, the totality of errors in this record, particularly those discussed orally, is such that the conviction now under review simply cannot be permitted to stand.

Next, you should, as a general and all but invariable rule, remain calm and dignified, making your closing as impressive as possible, carefully avoiding anything that is even faintly irrelevant.

Thus, if the question for decision is whether the practices in a particular industry violate the Sherman Antitrust Act, it is a waste of breath and worse for counsel to wind up on a note of how much the industry concerned contributed to the war effort. And if the case turns on the sufficiency of the allegations in a petition for habeas corpus, a peroration built around a letter from the prisoner, which has obviously been censored through the use of shears and which is waved under the eyes of the judges, is simply cheap.

Something more impersonal is necessary in order to close. Perhaps I may be pardoned for including two of my own perorations at this point, the combined batting average of which was .500.

In the Girouard case,²⁸ which turned on legislative ratification vel non (see Sections 50, 57, 70, 96, and 120, above) :

Thus it is clear that the decisions of this Court in the Schwimmer and Macintosh cases have been legislatively ratified by the Congress. Accordingly, unless this Court is now to sit as a Council of Revision, it must affirm the judgment below.

Well, the judgment was reversed, which prompted Chief Justice Stone to say, concluding his dissent:²⁹

It is not the function of this Court to disregard the will of Congress in the exercise of its constitutional powers.

And, announcing that dissent, on the very day he was stricken, with the last coherent words he ever uttered, he had said, "There has been too much of this judicial tinkering with statutes."³⁰

Here is another...