Unappealing formulation of the questions presented in order to defeat review.

• Jurisdiction: United States

Section 33. Unappealing formulation of the questions presented in order to defeat review.—When you represent the petitioner, you must dress up your questions appealingly in order to induce the higher court to take your case. But, when you appear for the respondent, you are perfectly satisfied with the status quo, and consequently your duty to your client requires that you minimize the questions presented by your adversary, in order to make them appear unimportant, or uninteresting except to the parties involved, or as turning on a mere question of fact. Here are some examples of effective depressants, taken from successful Briefs in Opposition.

(a) Whether the evidence is sufficient to support the verdict.

(b) Whether there is substantial evidence in the record to support the finding that * * *.

(c) Whether the concurrent findings of the two lower courts that * * * are correct.

(d) Whether petitioner may now rely on Section —— of the Act of ——, which it failed to call to the attention of either of the courts below.

(e) Whether, in a prosecution for making sales at over-ceiling prices, where the sole question at issue was whether petitioners demanded and received more than the ceiling price, the judge's omission to charge on wilfulness constituted prejudicial error requiring reversal of the convictions, where petitioners' counsel specifically acquiesced in the charge.

One caution may be in order when, on behalf of the winning side below, you employ the "always belittlin' " technique. There is always a tendency to add, by way of conclusion, that the question presented for review is not an important one. Very often, however, the question is important, but review is not, since the case was rightly decided. Therefore, unless you are prepared to concede that the question would not have been important even if you had lost below, don't yield to the tendency. For example, if a court decides that a valid contract requires consideration, the decision is right but the question is clearly of importance, as will be clear by considering the situation if the ruling had gone the other way. Therefore, in the usual situation, don't urge that the question is unimportant; say rather that the decision does not require further review.

Be careful, also, how far you go in asserting that a case is "sui generis"; you may be seeking review of the same kind of question later on, and, if your opponent is alert, he is in a position in a close case to persuade the court to make you eat...