Briefs filed in earlier cases involving the same or related questions.
Jurisdiction | United States |
Section 55. Briefs filed in earlier cases involving the same or related questions.—Not only does the examination of briefs aid the lawyer who is studying the techniques of advocacy (supra, Section 20), but, if the case in which they were filed is related to the one presently before him, he is bound to find therein, at the very least, a good deal of suggestive material. Any lawyer who has access to collections of briefs is therefore very fortunate. The fact that more and more libraries now have microfilm collections of Supreme Court briefs (Section 2, supra) testifies to a growing recognition of the importance of those documents.
First of all, if some other lawyer has written a winning brief on the point on which your case will turn, you may save yourself untold preliminary labor by starting your research there. (I say "may," because on occasion examination discloses that it was the court and not the lawyer whose argument won the case.) Once a brief has been filed, of course, it becomes a public document; there is no copyright and hence no infringement; this is therefore a field, preeminently, for the cynical advice to "plagiarize, plagiarize, plagiarize—but remember, please, always to call it 'research.' "
But there is a second and frequently even more compelling reason for examining briefs filed in earlier cases that involved questions similar to or identical with those in your own case.
It is written in the Bible, "behold, my desire is, * * * that mine adversary had written a book."100 Well, if mine adversary had written a brief, the chances are that he wrote something very different the last time, particularly if he represents the Government, which, more frequently than not, takes inconsistent litigating positions, sometimes (as in tax matters) because it must.
Mere inconsistency, of course, proves nothing; you are not going to win any appeal simply by making debating points, and of course it is not necessary to cite authority for the proposition that the United States is not subject to estoppel. But if you can establish, through indisputable references, that the other side has made a complete about-face on an issue of substance, or on any proposition that was never fairly debatable, it puts at least a crimp into that party's arguments, and it may well enable you to advance your own presentation right at the outset.
Here are some recent examples that illustrate the uses—and the limitations—of confronting the other side with its earlier arguments.
(a) In Swift & Co. v. United States,101 the basic issue was whether the railroads' refusal to deliver livestock at the Swift siding in Chicago without an extra and designedly prohibitive switching charge, in the face of delivery without this charge at the Union Stock Yards, only a few city blocks away, amounted to an unreasonable discrimination under the Interstate Commerce Act. The intervening railroads, whose charges were in issue, and who were defending far more vigorously than the Government, filed as an appendix to their brief a brief that some of Swift's counsel, on behalf of a Swift subsidiary, had presented to the Interstate Commerce Commission twenty years previously, when transportation conditions in the Chicago stockyards area were vastly different.102 Plainly, there is no estoppel against the assertion of rights under the Interstate Commerce Act,103 and it may well be that the reproduction of this document earned the strictures that Swift's reply brief made about it.104 Swift lost the case, and while no one can say what contribution, if any, the old document made toward that result, one point was clear: it didn't help Swift.
(b) In Opper v. United States,105 the issue was whether, where an admission is made to law enforcement officers after the date of the acts charged as crimes, it so far resembles a confession as to make it inadmissible in the absence of corroboration. Petitioner relied on Warszower v. United States,106 where the Court had said that admissions made prior to the crime do not require corroboration, because "They contain none of the inherent weaknesses of confessions or admissions after the fact." And petitioner quoted from the Government's brief in that case, to the effect that "It is the Government's contention that independent evidence is required only in the case of confessions, and of admissions made after the event and in the context of conversations, interviews, and proceedings relating to the offense itself. The theory of this position squares with the purpose of the rule requiring corroboration."107
The Court in Opper accepted petitioner's contention (and the Government reasoning from its Warszower brief), and held that all admissions after the fact, even of mere elements of the crime, and even when contained in exculpatory statements such as Opper had made, required corroboration.108 So far, so good. But then the Court went on to consider the quantum of corroboration that was necessary, and, resolving a conflict of long standing between circuits, held that petitioner's statements were sufficiently corroborated109—and affirmed his conviction.
(c) In the first two cases involving the military trials of civilian dependents, one of the issues between the parties concerned the scope of the treaty power. As has been shown...
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