The Briefs on the Merits - Bna

Ch. 13.9 <strong>The</strong> <strong>Briefs</strong> on the Merits 711
limiting petitioners and appellants to the questions presented in their petitions
for certiorari and jurisdictional statements. <strong>The</strong> general rule and its exceptions
are considered more fully in Sec. 6.26, supra, where the cases are
reviewed. Such plain errors, which can include a jurisdictional defect or a
constitutional violation, may be noticed during the oral argument before the
Court or upon the Court’s own examination of the record, including the trial
court transcript. Sibbach v. Wilson & Co., 312 U.S. 1, 16 (1941); Vachon v.
New Hampshire, 414 U.S. 478, 479 (1974). But the Court long ago warned
that it will notice such errors only in exceptional circumstances, and only “if
the errors are obvious, or if they otherwise seriously affect the fairness, integrity
or public reputation of judicial proceedings.” United States v. Atkinson,
297 U.S. 157, 160 (1936); Silber v. United States, 370 U.S. 717, 718 (1962);
and see Mahler v. Eby, 264 U.S. 32, 45 (1924); Weems v. United States, 217
U.S. 349, 362 (1910). Counsel obviously cannot assume that the Court will
necessarily utilize this power to overlook a failure to raise a particular question
that later becomes evident. <strong>The</strong> only safe advice is to raise all possible
“certworthy” questions in the petition for certiorari or jurisdictional statement,
and to repeat those questions in the brief on the merits.
13.9 Content of the Statement of the Case
This portion of a brief is sometimes called the statement of facts. 13 “<strong>The</strong>
statement of the facts is regarded by many advocates and judges as the most
important part of the brief,” 14 not merely as a necessary preliminary to the
Argument. In the words of Justice Jackson:
<strong>The</strong> purpose of a hearing is that the Court may learn what it does not
know, and it knows least about the facts. It may sound paradoxical, but most
contentions of law are won or lost on the facts. <strong>The</strong> facts often incline a judge
to one side or the other. 15
Rule 24.1(g) provides that there shall be:
A concise statement of the case, setting out the facts material to the consideration
of the questions presented, with appropriate references to the joint
appendix, e.g., App. 12, or to the record, e.g., Record 12.
13Rule 14.1(g), the equivalent Supreme Court Rule for petitions for certiorari, calls for “[a]concise
statement of the case setting out the facts material to consideration of the questions presented.” A more
precisely detailed description in the Federal Rules of Appellate Procedure requires both “a statement of
the case briefly indicating the nature of the case, the course of proceedings, and the disposition below,”
followed by “a statement of facts relevant to the issues submitted for review with appropriate references
to the record.” FED. R. APP. P. 28(a)(6), 28(a)(7).
14<strong>The</strong>se are the words of Judge Albert Tate, Jr. (later of the Court of Appeals of the Fifth Circuit),
when he was a Justice on the Supreme Court of Louisiana, in <strong>The</strong> Art of Brief Writing: What a Judge Wants
to Read, 4 LITIGATION 11, 14 (No. 2, 1978). Judge Bright of the Eighth Circuit also has stated that “[n]o
part of the brief is more important than the statement of facts, for however much the court may know
about the applicable principles of law, it knows nothing of the facts of the case before the lawyers submit
their briefs.” Appellate Briefwriting: Some “Golden” Rules, 17 CREIGHTON L. REV. 1069, 1071 (1984). Indeed,
“[t]he law doesn’t matter a bit, except as it applies to a particular set of facts.” Judge Kozinski, <strong>The</strong>
Wrong Stuff, 1992 B.Y.U. L. REV. 325, 330.
15 Justice Jackson, Advocacy Before the Supreme Court: Suggestions for Effective Case Presentations, 37
A.B.A.J. 801, 803 (1951).