The final accolade.

• Jurisdiction: United States

Section 39. The final accolade.—The real test of whether a brief has been effective—the ordeal by fire—is whether it wins the appeal. True, there are many good briefs that don't win cases, and assuredly there are poor ones (including some exceptionally poor ones) that do. But a brief that didn't win, however close to perfection it may have come, just wasn't an effective brief; since it didn't persuade the court, it lapses into the realm of "fine try" and "well played." The lawyer needn't be ashamed of it, but the client lost the case, and fees are normally paid with an eye to the final result. The pat story in this connection concerns the Northern gambler who cleaned out all the local talent in a little Southern town, after which the home town boys gathered around in a somewhat menacing manner and insisted that he tell them whether in his opinion Grant or Lee was the better general. The slick Yankee thoughtfully considered the question, gave even more thoughtful consideration to the group around him, and then answered, "Well, gentlemen—they paid off on Grant." So here: clients don't pay off on good losing briefs.

However, when the winning brief is inadequate, and forces the court to do a lot of independent research, and the opinion relies on cases not discussed or even cited by counsel and flatly rejects the proposition advanced by the prevailing side, then that wasn't a very effective brief either; it didn't persuade.

So I conclude that a really effective brief is one that (a) wins your case, and (b) persuades the court to follow your analysis of the problem and to rely on your authorities.

It may reflect an inadequate or erroneous set of values, but I never get the same pleasure out of winning a case when the court goes off on a tack of its own as when it follows the analysis I have labored over and set out in the brief. And I must confess to feeling the ultimate in forensic satisfaction when the court adopts an analogy that I invoked ²¹⁷ or incorporates into its opinion one of my own pet phrases.²¹⁸ Those are the trifles that, rightly or wrongly, I regard as the final accolade for the brief-writer.

--------

Notes:

^[217] (a) "The analogy suggested by counsel for the appellant seems apposite: namely, that a defendant who commits a crime in Canada, escapes to the United States, and then returns to Canada; he cannot defend on the ground that between the offense and the trial he was beyond the jurisdiction of the Canadian court." United States v. Malanaphy, ...