"Things you cannot afford to do."

• Jurisdiction: United States

Section 83. "Things you cannot afford to do."—The four outstanding faults of brief-writers, in my judgment, are (a) inexcusable inaccuracy; (b) unsupported hyperbole; (c) unwarranted screaming; and (d) personalities and scandalous matter.

They are don'ts, not only from the point of view of one's own professional standards and self-respect, but also from the narrow aspect of intelligent self-interest: every one of these faults is bound to backfire in the most unpleasant and costly way.

Below are listed some examples of these faults that I have encountered. In each of the instances I have indicated what the other side was able to do by way of reply; in none of these instances did success rest with the offending party.

(a) Inexcusable inaccuracy. In one case of conspiracy, which for a number of reasons need not be more particularly identified, the charge was that two of the defendants, who will be called the Smiths, conspired to defraud the Government of the faithful services of an officer, who shall be called Captain Jones.

At an appellate stage, the Smiths, whose defense was that certain payments by them to Captain Jones had been extorted by him, complained of the trial judge's failure to charge the jury that, if they found the payments had been extorted, there would be no basis for any finding of conspiracy.

The Smiths' handling of this contention is perhaps best shown reflexly, by setting out the answering excerpt from the prosecution's reply brief:

The Smiths complain at some length that the trial court's charge as to the basic issues concerning them was inadequate (Br. 18-24).

They say (Br. 20) —

As regards the Smiths, the basic issue in the case was whether or not the payments had been extorted by Captain Jones by threats to violate his duty, or had been made pursuant to conspiracy to seduce Jones from fulfilling his duty.

They then go on to quote three sentences from the court's charge (Br. 21, 22, 23), and conclude (Br. 21) —

It will be observed that there was no statement by the Trial Court anywhere in the charge that the jury could find that there would in law be no conspiracy or agreement on the part of the Smiths as charged in the indictment if the jury believed the contention of the defense, namely, that the Smiths were the victims of a shrewd and ruthless plan of extortion.

The difficulty with considering particular isolated sentences of a charge instead of the charge as a whole, or even a portion of the charge, is that important aspects are apt to be overlooked. The Smiths' sampling technique in this instance has produced the very consequences which might have been anticipated; they failed to note that the trial judge did in fact charge on the precise point with which they were concerned. He added, following the sentence quoted by the Smiths at Br. 22, and preceding the sentence quoted by the Smiths at Br. 23, the following (R. 1134) :

However, as to the payments of money, if you believe that they were coerced by the defendant Jones, that is, that they would not have been made at all in whole or in part except for Jones' threats, then such payments would not be the result of agreement nor any evidence of a crime. And if you so believe, and also are not satisfied beyond a reasonable doubt by other evidence in the case that the conspiracy existed as charged in the indictment, you should find all the defendants not guilty, as Jones is not here charged with extortion.

The foregoing intervening excerpt is nowhere quoted in the Smiths' brief.

Well, the Smiths went to jail. And, apart from any question of professional standards, it was a fact that, had the trial judge's charge been set out in full, without omissions, the omitted sentence would not have appeared to do nearly so full justice to the Smiths' theory as isolating it in the reply brief did.

(b) Unsupported hyperbole. Whenever a lawyer exaggerates any substantial distance beyond the record, he is simply asking for trouble—and the greater the exaggeration, the more devastating the impact of the inevitable reply.

I have in mind a criminal case involving tax evasion, where the essential defense was that the petitioners had made a disclosure of their tax discrepancies, so that, they contended, they had obtained immunity from prosecution. In their brief they stated that the court below

wholly failed to consider the important and undisputed facts pertinent to the question whether the Petitioners' confession, unique for frankness and completeness, was induced by the Treasury Department's promise of immunity.

This assertion, that the petitioners' confession was "unique for frankness and completeness," really left the lads wide open. Here are the answering paragraphs from the prosecution's brief:

1. The District Court found as a fact that "at no time between February 28, 1945 and April 25, 1945, was any act of the defendants or of the corporate taxpayers prompted or brought about by any inducement held out to them by any person in authority or any person...