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Report No. 14

19. Written Arguments

1. Arrears and delays in the Supreme Court and the High Courts.-

We have noticed in an earlier chapter the state of the file of the Supreme Court. It has been observed that the hearing of appeals and other matters in the Supreme Court takes a long time, sometimes much longer than is taken in the High Court. The position in most of the High Courts in the matter of arrears, as we have noticed earlier, is even more acute. The heavy accumulation of first and second appeals and other matters has been rightly looked upon as an evil which calls for immediate and drastic measures.

2. A suggested remedy: Written briefs and restricted oral arguments.-

One of the measures suggested to remedy this state of affairs is the submission of written arguments or briefs before the hearing of appeals, with the time allowed to counsel for oral argument being restricted to one or two hours. The suggestion is based on the pattern largely followed in the United States in dealing with appellate matters.

3. Our system.-

The system of conducting an appeal in our country follows closely the British method. Oral arguments are unrestricted as regards time. The judgment of the Court below, pleadings and portions of the evidence are generally read out and commented upon and authorities cited and elaborately discussed. This lengthy and dilatory process can be replaced, it is said, by the American system the adoption of which, it is urged, would result in a great saving of time.

4. The American system of written briefs.-

It is necessary first to appreciate fully what the American system is, before we can usefully discuss the feasibility of its adoption in our High Courts and the Supreme Court. It is thus described by the Evershed Committee in its Report: "In the United States of America it has for many years been found to be impossible in practice to allow the hearing of appeals to occupy the length of time which is habitually occupied in this country. Sheer pressure of business has forced on the American Courts the necessity of rationing the time allowed to either side for the oral hearing of appeals.

In order to enable this to be done a special procedure has been evolved in the United States whereby each party to an appeal is obliged to lodge with the appellate Court a printed 'brief', which consists of a full, written arguments, setting out in detail the grounds on which it is sought to attack or support the judgment of the Court below. In the 'brief' the authorities relief on are cited and reference is made to the documents and passages of the evidence relief on in support of the argument. The documents and transcript of evidence are themselves bound up in an Appendix, which is lodged with the court together with the 'brief', rather on the lines of the procedure followed in this country in relation to appeals to the House of Lords."

"Under this system the members of the appeal Court are not obliged to read the 'briefs' and documents before the hearing of the appeal unless they wish to do so. We were informed that some Judges in practice prefer to do so, while others like to hear the oral argument first. But all the Judges must and do read the 'briefs' and documents at some time, and no Judge would think of preparing his judgment until he had carefully read and considered the written argument and documentary material.

The point is that the members of the Court have this written material to take away with them and refer to. This makes it possible for counsel to present the appeal at the hearing with a very abbreviated oral argument. In fact we were informed that in almost all the appellate tribunals in the United States, including the Supreme Court, they are required by rules of Court to do so, the time allowed for oral arguments being strictly limited, usually to not more than one hour for each side. Only so, we were given to understand, would it be possible for the appellate Courts in the United States to get through the immense mass of work with which they have to deal."1

1. Final Report of the Committee on Supreme Court Practice and Procedure, p. 190, para. 570-571.

5. Strain on the judges.-

It will be appreciated that the system of submitting written briefs which the Judges study before or after the limited oral arguments must put a very great strain upon the Judges. How does the American system enable the Judges to shoulder this burden? This may be explained by the working of the system in the Supreme Court of the United States about which we have been able to gather reliable information.

6. Relief by competent Secretaries.-

Each of the Justices of the Supreme Court is provided with two or three highly qualified Legal Assistants called Law Clerks or Secretaries. It is customary to pick out these Legal Assistants from the men who have earned the highest distinction at the Universities. "Each Justice was entitled to a Secretary, paid by the government. Holmes had a new one every year, sent down by John Gray (later sent by E. R. Thayer and Felix Frankfurter) from the "Harvard Law School. They arrived in September, the pick of the graduating class

"The young men were like sons to Holmes He showed them his written opinions, talked_ to them about the cases. Sometimes he lent one of them to another Justice; none of his brethren had Secretaries beyond the stenographer class, and it was good to have someone who could be trusted with details of cases while they were pending There were in the end thirty of them. 'Holmes's Annuals, they were called. They became later on, Attorney-Generals of the United States, Chairman of the Board of U.S. Steel, Presidents of New York Life Insurance, Presidents of Federal Banks, professors at Harvard and professors elsewhere."1

1. Yankee from Olympus-Oliver Wendell Holmes C.D. Bowen: Bennant Student Edition, p. 289-290.

The working of the System.- These Secretaries study the briefs submitted to the Court in the first instance and do in connection with these briefs much of the research work which counsel would otherwise have to do. The Justices, therefore, have the advantage of independent research conducted by their own staff. The examination of the material collected by the Secretaries of the Justices necessarily occupied a great deal of the time of the Justices so that, during term time, only half of the time is spent in hearing in Courts and the rest of the time is occupied in the Justices' examining the cases in their chambers and discussing them at their meetings.

In fact, we are told that only a small proportion of the cases filed in the Supreme Court is given an oral hearing and the rest disposed of by the Justices sitting by themselves. The way in which the Supreme Court of the United States works has been graphically described by the late Justice Jackson of the Supreme Court in his book "The Supreme Court in the American System of Government".

"No conclusion as to what can be expected of the Court is valid which overlooks the measure of its incapacity to entertain and decide cases under its traditional working methods. With few exceptions, Congress has found it necessary to make review in the Supreme Court not the right of a litigant but a discretionary matter with the Court itself, in order to keep the volume of its business within its capacity. Last term, review was sought by appeal and certiorari in 1,452 cases, only 119 of which were allowed. It is not necessary to detail the considerations which move the Court to grant review beyond saying that the grant is not intended merely to give a litigant another chance, nor does it depend on the dollars involved or the private interests affected, but upon the importance of the case to a uniform and just system of federal law."

"The routine during the Court term has been to hear arguments the first 5 days of each two weeks, followed by two weeks of recess for the writing of opinions and the study of the appeals and certiorari petitions, which must be disposed of periodically. The time allowed for each side to argue its case is normally one hour, and, in cases where the question seems not complex, it is half of that. In the early days of the Supreme Court, the volume of work permitted argument to extend over several days, as it still does in the House of Lords. Many cases argued before us to-day in two hours have taken days, weeks, and even months in the trial court or administrative Body."

"What really matters to the lawyer and the law is what happens between the argument and the decision. On each Saturday following argument or preceding a decision Monday, the Court holds its only regularly scheduled conference. It begins at 11 a.m. and rarely ends before 5.30 p.m. With a half-hour for lunch, this gives about 360 minutes in which to complete final consideration of forthcoming opinions, the noting of probable jurisdiction of appeals, the disposition of petitions for certiorari, petitions for rehearing and miscellaneous matters and the decision of argued cases.

The largest conference list during October 1953 term contained 145 items, the shortest 24, the average 70. A little computation will show that the average list would permit, at the average conference, an average of five minutes of deliberation per item, or about 33 seconds of discussion per item by each of the nine Justices, assuming, of course, that each is an average Justice who does the average amount of talking.1

"The individual study which any case receives before or after argument is the affair of each Justice. All receive the printed briefs and record, in some cases short, in others running to a great many volumes. Some records take five feet of shelf space. It is easily demonstrated that no Justice possibly could read more than a fraction of the printed matter filed with the Court each year. Nor is it necessary that he should. But as to his individual labors with this mountain of papers, each Justice is the keeper of his own conscience."2

1. The Supreme Court in the American System of Government by Robert H. Jackson, pp. 13-15.

2. The Supreme Court in the American System of Government by Robert H. Jackson, p. 16.

7. Special nature of jurisdiction of Supreme Court in the U.S.A.-

This glimpse into the method of functioning of the Supreme Court of the United States reveals an essential difference between the jurisdiction and powers of that Court and those of our Supreme Court and High Courts. It appears that in most of the matters coming before it, even in matters where review is sought by way of appeal, the Supreme Court of the United States enjoys a very wide discretion. There would not appear to exist a right of appeal in the litigant as under our Constitution and laws. It is not, therefore, surprising that a different system enabling the Judges by a quick preliminary examination not to admit at all the review by way of appeal should have been adopted in that Court.

8. Assumptions underlying American System.-

Apart from this essential difference, it will be realised that the system operating in the United States proceeds on three fundamental hypotheses. It postulates:

(i) A competent Bar which should be able to prepare and submit an exhaustive and fully documented brief;

(ii) Judges who would be able to comprehend the full bearings of the points involved in an appeal by a mere perusal of the briefs;

(iii) Expert qualified assistants to the Judges who would make research into the questions arising so as to assist the Judges to get thoroughly seized of the briefs filed.

9. The position in India: Difficulties in introducing written arguments.-

We may, perhaps, with some hesitation accept that the first requisite would be available at the Bar of the Supreme Court and the High Courts. It would be difficult to say the same with regard to the second. Our Judges are trained to gather facts and perceive the relevant points of law from fairly full oral arguments. Indeed, they from time to time, resolve doubts both as to inferences of facts and validity of legal contentions by questions put to counsel. As to the third, its introduction into the working of the judicial system in our country will be an entirely novel feature. It involves the question whether we would not be in many cases substituting the efficient Legal Assistants for the Judges. Lawyers in the United States have not infrequently a feeling that cases are disposed of by the Legal Assistants and not by the Judges.

"In fact, a suspicion has grown at the Bar that the law clerks already constitute a kind of junior court which decides the fate of certiorari petitions. This idea of the law clerk's influence gave rise to a lawyer's waggish. statement that the Senate need no longer bother about confirmation of Justices but ought to confirm the appointment of law clerks. Twice during the last term I was asked by prominent lawyers, once by letter and once orally, how they could get their petitions for certiorari past law clerks and to the consideration of the Justices themselves. The answer is that every petition is on the conference list, and its fate is decided by the vote or agreement without formal vote of every Justice who does not disqualify himself."1

1. Jackson Op. Cit., p. 20.

10. Free time to Judges (Cost of Secretarial assistance).-

What is more, the United States system involves the practice of granting what is called free time to the Judges to peruse the briefs-the Judges working in Court half the time, the remaining half being devoted to study and disposal of briefs. It also means the increased cost of the employment of a number of very capable well paid legal assistants.

Having regard to the essential difference in the jurisdiction and powers of our Courts and the entirely differing conditions in which they function, is the adoption of the American system by us at all practicable?

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