Never let the other side write your brief.
Jurisdiction | United States |
Section 47. Never let the other side write your brief.—Always write your brief in such a way as to set out and make the most of your affirmative case. This admonition is perhaps most to be borne in mind when you are appellee or respondent; don't content yourself, in that situation, with a point-by-point reply to appellant or petitioner. Accentuate the affirmative features of your case, don't let the other side write your brief or even shape it.
I can illustrate this approach first with an anecdote and then with actual specific instances. The anecdote concerns one of the ablest of Solicitors General, who was asking when the Government's brief in Oatmeal v. United States would be ready. He was told that it had not yet been started since the petitioner's brief had not yet come in. "What's the matter?" he asked. "Haven't we got a case?"
So, don't follow the appellant's outline of points, even when you must reply to all of them. Put your own strongest point first, because what may be strongest for him may not be so for you.
Here are some examples illustrating applications of this principle.
(a) One of the most instructive instances for the advocate is found in two of the recent cases that involved the constitutionality of military trials of servicemen's dependents.5 Both sides arranged their points so as to stress those they considered the strongest, without regard to the opposition's arrangement; and the same principle was followed after the grant of rehearing foreshadowed at least a shift of emphasis in the direction of the Court's thinking.
Here were the major headings in the Government's brief on the first hearing of Reid v. Covert:
II.6 Article 2 (11) of the Uniform Code of Military Justice is a valid exercise of the power of Congress to make rules for the government and regulation of the land and naval forces, the war power, and the power to make all laws necessary and proper for carrying into execution the sovereign authority of the United States to maintain relations with other sovereignties.
III. Jurisdiction over appellee under Article 2 (11) was not lost by reason of her transportation to the United States, her imprisonment in the Federal Reformatory for Women, or the reversal of her conviction by the Court of Military Appeals.
Otherwise stated, the Government concentrated on sustaining the constitutionality of the assailed statute. Counsel for the dependent woman urged first the nonconstitutional ground, sufficient for her purposes, that jurisdiction if it ever existed had been lost, and then joined issue on the constitutional argument, as follows:
II. Assuming that appellee could constitutionally have been tried by court-martial in England as a person "accompanying the armed forces of the United States without the continental limits of the United States," she ceased to be subject to the Uniform Code of Military Justice after the Air Force returned her to the United States and placed her in civilian custody, and consequently she could not thereafter be retried by court-martial.
III. Article 2 (11) of the Uniform Code of Military Justice is unconstitutional to the extent that it purports to authorize the trial of civilians by court-martial in time of peace.
IV. The treaty power is completely irrelevant in the present case.
V. To the extent that appellant's invocation of the Necessary and Proper Clause brings the matter into the realm of judgment, examination of the realities of trial by court-martial demonstrates that the principle of "the least possible power adequate to the end proposed" is one preeminently applicable to the scope of military jurisdiction.
The first opinions sustained the jurisdiction.7 After rehearings were granted, however, it was plain to all concerned that a regrouping, so to speak, of the parties' previous arguments was in order, particularly in view of the questions on which the order granting rehearing had invited discussion.8 The Government then marshaled its contentions as follows:
I. Court-martial jurisdiction over dependents and civilian employees accompanying the armed forces overseas is a practical necessity both as a matter of international relations and to accomplish the military...
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