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Report No. 79

II. Arguments: Written and Oral

6.2. Importance of arguments.-

In contrast with an original trial, the duration of hearing before an appellate court depends almost entirely on the time taken up by the counsel for the parties in presenting their case before the court. No doubt, the questions which the appellant proposes to raise can sometimes be properly answered from an examination of the record; but usually it becomes necessary to allow the parties to present before the appellate court at some length their points of view in regard to the verdict of the lower court.

The appellate court, therefore, needs statements of the contentions advanced by the respective parties to challenge or support the verdict. Such statements could be written-these are known usually as "briefs": but in India, the practice is to hear the counsel for the parties orally. This renders it desirable that some attention should be paid to the time taken in an appellate court in the oral presentation of the arguments. The question whether some saving of time could be effected in his regard without prejudice to the interests of justice should therefore be examined.

6.3. Two methods of arguments.-

One of the most important questions which needs attention when dealing with the hearing of appeals is about the method of arguments to be adopted. There are, at present, two main schools of thought in this regard. One school pleads for substituting written briefs for oral arguments, or for reducing oral arguments to the minimum extent. The opposite school stresses the need for oral arguments and is averse to introducing the system of written "briefs" in arguments.

In U.S.A. the arguments addressed to the appellate courts are in the form of written "briefs", supplemented by oral arguments lasting normally not more than an hour for each case.1 In many countries on the European continent also,2 the system adopted in appeals is that of written arguments. As against that, the system prevalent in England,3 India4 and a number of Commonwealth countries5 is of oral arguments.

1. Para. 6.8, infra.

2. E.g. France; see Appendix 7.

3. See paras. 6.4 and 6.5, infra.

4. Order 41, rules 9, 10, 11(1) and 16, Code of Civil Procedure, 1908.

5. For Canada, see para. 6.11, infra

6.4. The two procedures.-

We propose to consider at some length the English and American appellate procedure, since they represent two diametrically opposite systems in regard to oral and written arguments. The salient features of the two systems and the contrast between the two have been given in an article,1 to which we shall make a reference.

1. Delmar Karlen Appeals in England and the United States, (1962) 78 LQR 371 (378-382).

6.5. Papers on appeals in U.S.A. and England.-

An outstanding difference between the two nations is the fact that 'briefs' are required in the United States, whereas in England they are not. The 'brief is a lull-dress argument in writing, often running into fifty or more printed or mimeographed pages in length. It states the facts, outlines the claimed errors in the proceedings below, and cites and discusses the authorities claimed to justify reversal or affirmance. The appellant serves his brief on the other side will in advance of the time for oral argument, and the respondent then serves his answering brief on the appellant, again well in advance of oral argument. Sometimes the appellant serves a reply brief.

6.6. Case in House of Lords.-

In England, a brief is virtually unknown. The closest approach to it is the 'case' normally required from both sides in the House of Lords and Privy Council. This however, is a very abbreviated paper, seldom running into more than six or seven pages in length, and is intended only as a preliminary out-line of the extended oral argument to be made later. It does not discuss authorities in detail, or argue the propositions of law to be relied upon. Relatively few cases are cited.1

In the House of Lords,2 prior to the hearing, the parties provide the Court and each other with only a very short out-line of the line of argument they intend to adopt and the legal authorities they will rely on. The judges do not usually analyse this document in any detail before-hand, apparently on the assumption that this would detract from the right of counsel to make his case before judges who do not have any preconceptions. Oral argument is not limited in time, lasts an average of three days and occasionally up to twenty days, and is the primary external influence on the Court's conclusion.

1. Delmar Karlen Appeals in England and the United States, (1962) 78 LQR 371 (378-382).

2. Weiler In the Last Resort, 1978, p. 24.

6.7. Record in U.S.A.-

The record of appeal in the United States consists of the notices of appeal, pleadings and other formal documents, the judgment below and so much of the evidence as may be relevant as to the questions raised on appeal.1

. Delmar Karlen Appeals in England and the United States, (1962) 78 LQR 371 (378-382).

6.8. Oral arguments in U.S.A.-

Oral arguments in U.S.A.1 are secondary in importance to the 'briefs', and are rigidly limited in duration. In the United States Supreme Court, half an hour is usually allowed to each side.2 In many appellate courts, frequently no more than fifteen minutes or a half-hour for each side is permitted for oral arguments.3 Reading by counsel is frowned upon.4 The judges do not wish to hear what they can read for themselves.

They expect to get all the information they need about the judgment below, the evidence, and the authorities relied upon, from studying the briefs and record on appeal. They do not even encourage counsel to discuss in detail the precedents claimed to govern the decision, preferring to do that job by themselves in the relative privacy of their chambers, with or without the assistance of law clerks. The relevant rule, so far as is material reads.5

"1. Oral argument should undertake to emphasize and clarify the written argument appearing in the briefs theretofore filed. The court looks with disfavour on any oral argument that is read from a prepared text.

2. The appellant or petitioner shall be entitled to open and conclude argument. But when there are cross-appeals or cross-writs of certiorari they shall be argued together as one case and in the time of one case, and the court will, by order reasonably made, advise the parties which one is to open and close.

3. Unless otherwise directed, one half hour on each side will be allowed for argument. Any request for additional time shall be presented not later than fifteen days after service of the petitioner's, or appellant's, brief on the merits by letter addressed to the clerk (copy to be sent opposing counsel), and shall set forth with specificity and conciseness why the case cannot be presented within half hour limitation.

4. Unless additional time has been granted one counsel only will be heard for each side, except by special permission when there are several parties on the same side. Divided arguments are not favoured by the court.

5. In any case, and regardless of the number of counsel participating, a fair opening of the case shall be made by the party having the opening and closing.

6. Oral argument will not be heard on behalf of any party for whom no brief has been filed."

1. Delmar Karlen Appeals in England and the United States, (1962) 78 LQR 371 (378-382).

2. See rule 44, quoted infra.

3. This was the position in 1962.

4. Delmar Karlen Appeals in England and the United States, (1962) 78 LQR 371 (378-381).

5. Title 28, US Code (1970), Edn. Rule 44 (Oral Argument).

6.9. Oral arguments in England.-

In contrast, in England, where there are no written briefs, oral arguments ire all-important. They are never arbitrarily limited in duration. While some last for only a few minutes, others go on for many days, even weeks. The position in England has been thus stated1:-

"The only controls ordinarily exercised over the time of oral argument are informal, ad hoc suggestions from the judges. Thus when counsel wishes to cite a case as authority, the presiding judge may ask him: for what proposition? If the judges indicated that they accept the proposition as stated, there is no need to read the case. Similarly, if counsel has persuaded the judges on a certain point, they may indicate that it is unnecessary for him to pursue it further.

If counsel for the appellant, by the time he finishes his argument, has failed to persuade the court that the decision below should be reversed or modified, the court informs counsel for the respondent that it does not wish to hear from him at all, and proceeds forthwith to deliver judgment. Despite such controls as these, the time spent in England in oral argument tends to be very much greater than that spent in the United States.

In recent years, the average duration of argument in the court of Appeals has been about a day and a quarter per case, and in the House of Lords and the Privy Council, about three days per case. Much of the time, perhaps half, has been spent by counsel reading aloud to the court. It is in this way that the judges have learned what transpired in the court below (by listening to a reading of the judgment and such parts of the evidence as may be relevant), what errors are complained of by counsel (by listening to a reading of the notice of appeal, which is required to specify the errors), and the authorities relied on by counsel (by listening to a reading of statutes and cases, either in their entirely or in large part)."

1. Delmar Karlen Appeals in England and the United States, (1962) 78 LQR 371.

6.10. No 'brief' in England.-

Very rarely does one come across a written 'brief in England. In Rondel v. Worse, (1967) 1 QB 443 a 'brief (written statement prepared by counsel and handed in to an appellate court to show the contentions put forward) was received and read by the Court of Appeal, but it was described as "wholly irregular and contrary to the practice of the Court and should not be allowed as a precedent for future proceedings".

6.11. Appellate procedure in Supreme Court of Canada.-

It may be of interest to note that the procedure in Canada in the hearing of appeals before the Supreme Court is half-way between that adopted in England and in U.S.A. A fairly recent stud,1 after stating that in the House of Lords, the parties provide the court with only a short out-line of arguments they intend to ad. t and the legal authorities they will rely on, tells us as follows about Canada2:

"In the Supreme Court factums are much larger-often over 100 pages-and make a much more sustained argument in their own right. The Judges are assisted by a clerk who can make some analysis of the issues in the case and critical points in contending positions and provide this for the Judges before the hearing At the hearing, oral argument is again unlimited, lawyers on each side spend a great deal of time reading from the record of the case or from prior judicial authorities, and a typical hearing will last upto two days."

1. For criminal cases in Canada, see para. 6.15, infra.

2. Committee on Supreme Court Practice and Procedure Report, (1953), pp. 191-193, paras. 573, 574.

6.12. View of the Evershed Committee.-

In England, the adoption of the American method of disposing of appeals was considered by the Evershed Committee,1 which carefully examined the arguments in favour of and against the method. The Committee reached the conclusion "that the American system would provide in this country a less satisfactory system for conducting appeals than that now prevailing. Furthermore, we are satisfied that the American system would be quite unsuitable for adoption in this country in view of the different conditions prevailing here and would not be likely to lead to any marked reduction in the costs of appeals".

1. Committee on Supreme Court Practice and Procedure Report, (1953), pp. 191-193, paras. 573, 574.

6.13. The Evershed Committee further stated1 that "Whatever may be thought to be the advantage of the American system of 'briefs' we found singularly little enthusiasm for it amongst the witnesses whose opinions we sought. The members of the Court of Appeal whom we consulted were emphatically opposed to the adoption of such a system in this country as also were the representatives of the Bar Council and Law Society".

1. Committee on Supreme Court Practice and Procedure Report, (1953), pp. 191-193, para. 574.

6.14. Views expressed by Mr. Justice Frankfurter and Mr. John Davis.-

It would be of interest to refer to the views expressed before the Evershed Committee by certain distinguished judges and lawyers. The Committee stated:

"We also had the advantage of hearing evidence from Mr. Justice Frankfurter, of the United States Supreme Court, as well as from Mr. John W. Davis, who was able to speak with a wealth of experience of appellate work in "the United States Courts. We gained the impression from these witnesses that they were by no means whole-heartedly in favour of the American system of conducting appeals, but that they rather envied the system prevailing here of unrestricted oral argument. They appeared to regard the American 'brief system, with its strict limitation of the time for oral argument, as a necessary evil forced upon them by the pressure of appellate work, the volume of which is so great that it would be simply impossible to get through it if unrestricted oral argument were permitted."

6.15. Position in Commonwealth.-

It would seem that the idea of dispensing with oralkarguments has not, as a rule, found favour with Commonwealth countries1

1. For Canada, See para. 6.11, supra.

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