A lecture on appellate advocacy.

• Author: Llewellyn, Karl N.

Well, Brethren and Sistren, I find myself in a completely impossible position: The Bar Association has made it clear that beginning at eight o'clock I cannot possibly talk beyond sixty minutes. And the Law School has made it clear that beginning at 8:30 I cannot possibly talk more than thirty minutes. That gives me, as far as I can judge by my watch, something like fifteen to seventeen minutes to deal with a topic which when adequately presented by Frederick Bernays Wiener--and I think rather adequately presented--occupies about 500 pages. (1) (Laughter.) Under these circumstances I trust that I, as I attempt to hold myself within reasonable bounds, may have unanimous consent, to, as the people in Congress say, "enlarge my remarks"? (Laughter.)

Is there anybody who objects to my quote "enlarge my remarks," unquote? Mr. Chairman, I ask you to note that there is no objection. (Laughter.)

I'm going to try to be just as short as I can, and you understand it's utter nuts to attempt to tell anybody how to argue an appeal in two hours.

Let's begin with a few of the presuppositions before one even starts to talk; the things that are completely presupposed. When I was a kid at Yale, Old Hadley, the President, used to tell the Chapel speaker, "Few souls are saved after the first twenty minutes." (Laughter.) I should alter that general approach in terms of "No appellate advocate is created inside of an hour." (Laughter.)

One has to assume a few things. One has to assume, for example, that you know about Davis' magnificent address in 1940, on how to handle oral argument on appeal. (2) One has to assume that you know about what I think is an even better job: Whitman Knapp's job, in 1959, Why Argue an Appeal, and If So, How?, (3) or Kenison's beautiful study of the general problem of appeal, (4) or that beautiful book by Fritz Wiener, now in two editions, backbone, and very little waste space, on effective appellate advocacy (5) and the approach to appellate advocacy by way of the federal courts. (6)

I say one has to assume this. One has to assume that everybody understands that to handle an appeal without oral argument is silly. I see no reason to argue that to you. (7) If you don't understand that, why, what's the use of talking to you?

One has to assume such other minor things as that the fellow who is about to have the appeal can read. A broad assumption, I know. (Laughter.) And one has to assume that he knows that a sentence must be so written that the punch word comes at the end. And if you haven't got this to work with, you just can't talk. In even the half time that I haven't got. (Laughter.)

Nevertheless, I do think that once one makes those assumptions, there are some things that one can press--at least as to aspects which are not yet in the now growing, and, in my opinion, wisely and beautifully growing, literature. I don't think, for example, that that other piece of underpinning of any theory at all in the preparation of an appeal--the study of the particular tribunal before which the case is to come--I don't think that that has been pressed with anything like the power with which it ought to be pressed.

I hear a great deal from the skillful advocates, when they get around to such a speech as I'm trying to make, about "sinking yourself in the facts." And "sinking yourself in the law of the case." I don't hear so much, even from the really good ones, about how you have to begin by "sinking yourself in the tribunal" to which you are to argue. And I am about to urge upon you that it is through your understanding of the tribunal that you understand what facts to look at and what part of the authorities and what shape of the authorities to build to handle the facts in your particular case.

I say again: You begin before you get your case. Not only with a fundamental understanding of the language, but with an understanding of the appellate tribunals in your jurisdiction before whom you are about to argue. For, let me say this clean, clear, hard, and unmistakably: The job of an appellate argument is to win a particular case before a particular tribunal, for a particular client. And, since that is so, it begins with the tribunal. Long before the case comes into your office, you should have been studying that tribunal, indeed any appellate tribunal before whom you may have a case to argue. It is that tribunal's view of the facts which will control. It is that tribunal's view of the authorities which will control. It isn't yours. And there is nothing out there--as Holmes put it once, there is no "brooding omnipresence in the sky" (8)--that's going to work for your client or for you.

So we come to the general theory of tribunals, especially of the American appellate tribunal. This I have developed at very considerable length, and, as I am told by many of my readers, with unutterable difficulty in a book called The Common Law Tradition: Deciding Appeals. To any of you who are lawyers, I nevertheless insist you can't afford not to work through that unbelievably badly written book. (Laughter.) The essence of it, for our purposes immediately here at hand, is that it demonstrates, and I think it demonstrates incontrovertibly, that our authorities, be they case law authorities or statutory authorities, are truly multiform; run in not one direction, but seven. (And I don't see anybody challenging this yet. I don't know how many reviews your Chairman mentioned, but he didn't mention nearly as many as there are. [Laughter.] And there hasn't been anybody who has been ready to get up and deny that the book demonstrates this.) I didn't say "not one but two"; I said "not one, but seven." And if you need, I will say forty-eight. But seven is enough to make the point that when you approach the authorities you approach a malleable, a manipulable mass of material.

If the appeal has any reason to have been brought at all, or has any reason to be defended at all by the respondent, the authorities are available on each side in a letter perfect case in the hands of any really competent technician. And this is simple as pie. The question is: Which view--justifiable, decent, righteous, and rightful--which view, among the possibilities, is the Court going to accept?

The second thing that the book does--and I think this is again demonstration and not an expression of opinion--is to make it clear that as our courts go about their job of simultaneously satisfying their duty to the law and their duty to justice, both of which they understand, both of which they cherish, both of which they labor over and under, their choice among the various doctrinally correct possibilities turns on the Court's view of what is right and decent for the community in regard to the outcome of the case.

And this leads, you see, to a repetition of the three things which underlie any technique of legal argument:

First, because it is the Court's choice which is going to determine the outcome, you have to begin by study of the tribunal.

Second, because the facts are not the facts out there somewhere, but are the facts as seen by the Court, you have to study the Court first and see the facts through the eyes of the Court.

And third, since the authorities which are the controlling authorities are multiform, multi-possible, you have to study the way the court sees authorities. They are in the main extraordinarily careful in their handling of authorities.

I'm not going to spend any time on that. I simply tell you: Go look at the book. They are craftsmanlike, in their handling of authorities.

But the thing that guides them into this arrangement of the available, as distinct from that other arrangement of the available, is their sense, their view of sense, for the whole of us. And thank God that this is so. It's against this background, and only against this background, that we can start thinking in terms of technique. Do I make myself clear?

What I have to say about techniques presupposes that you can read English, write English, understand your Court, and understand your basic theory. Once you have got those things clean, we can begin to talk for the little time that we have left about how to go about doing it.

Of course the first thing that comes up is the issue and the first art is the framing of the issue so that if your framing is accepted the case comes out your way. Got that? Second, you have to capture the issue, because your opponent will be framing an issue very differently. You have got to so frame yours...