The saving grace.

• Jurisdiction: United States

Section 129. The saving grace.—The saving grace is best used sparingly; intentional, deliberate humor in an appellate court is a dangerous ingredient in untrained hands, and an attempted joke that falls flat chills the atmosphere into a deep freeze. In this field much depends upon the court—some are deadpan, sitting like a collection of wooden Indians, others have a more ebullient temperament. Moreover, much depends on the advocate concerned; it is only the real leaders of the bar who can afford to say things that in other mouths would be inappropriate liberties.

It may be noted, however, that the danger zone for younger practitioners lies in the realm of deliberate, purposeful humor, carefully and often all too obviously planned in advance. Spontaneous wit, so long as it is not lacking in the necessary quantum of deference, is hardly ever resented; to the contrary.

In the view that it may be of interest to examine some examples of permissible light touches, I include a few that have passed muster, or, at least, that have not backfired.

(a) Action by the United States to validate a claim filed in a probate proceeding; the State Supreme Court held the claim void because not filed in time. Government counsel urged that the United States was not bound by state statutes of limitations; counsel for the estate urged that the state enactment was not a statute of limitations, but a statute of nonclaim. On rebuttal:

The contention seems to be that a rose by some other name—might prove less thorny.⁴²

(b) In the Girouard naturalization case,⁴³ already mentioned at some length herein (Sections 50, 57, 70, 96, 120, and 126, supra) , the basic issue...