Moran v. Bank of California, N.A.

ROSSMAN, J. This cause is before us upon a motion submitted by one of the appellants, Oregon Division of the American Cancer Society, for an order to strike the brief filed by the respondent, H. Gerald Moran, upon the following grounds: “1. It [Moran’s brief] does not comply with Rule 13 (A) 6 of the Supreme Court requiring that all reference to evidence make appropriate designation of pages of the Transcript of Testimony, Bill of Exceptions or Exhibits. * * * “2. It does not comply with Rule 13 (A) 2 of the above court, in that the purported supplemental Statement of Pacts, from pages 3 to 30 thereof, does not constitute a statement of matter omitted in the Statement of Pacts of appellant, Oregon Division of the American Cancer Society. * * * “3. In it, the Respondent refers to matters that are not within the record of this case. * * The respondent Moran insists that his attacked brief complies with our rules. He declares that the part which contains references to neither the exhibits nor to the transcript of evidence is a supplementary statement of the facts, and claims that his departure from the record is to matters of which the court may take judicial notice. — 360 — Rule 13(A)2 (see 190 Or 700) follows: “2. Statement of the Case. The appellant’s brief shall open with a clear and concise statement of the case, which statement should not contain a detailed recital of the facts. “If the respondent is not satisfied with appellant’s statement of the facts, he may file a supplemental statement of the matter omitted which he deems essential to an understanding of the questions presented, in which event he shall point out with particularity the defects and inaccuracies, if any, in appellant’s statement of facts.” Rule 13(A)6 (190 Or 703) follows: “6. Page References to Evidence. The briefs, in referring to the evidence, must make appropriate designation of pages of the transcript of testimony or bill of exceptions, or, in case of an exhibit, the identification number or letter of the same. The following abbreviations may be used: Tr. for transcript of testimony; B.E. for bill of exceptions; Ab. for abstract; and Ex. for exhibit.” The appellants have filed three briefs. We shall pause for a moment upon them. The brief submitted by the appellant, Oregon Division of the American Cancer Society, begins with a section entitled Statement of the Case. Its opening words are: “This is an appeal from a decree invalidating a document dated April 19,1951, as the Last Will and Testament of James H. Miller, deceased, and declaring he died testate under a document dated April 7, 1951.” The statement is 19 pages long. The sentence which we quoted is succeeded by several short paragraphs which (1) name the beneficiaries and executor of the contested will; (2) state the appraised value of the — 361 — decedent’s estate; (3) identify the proponents of the challenged will and its successful contestant; (4) recite tersely the attack which the contestant made in the circuit court upon the will; and (5) name the appellants. The foregoing which introduces the case to the court and gives the latter a quick grasp of the appeal occupies less than two pages of the brief. Those passages are followed by 17 pages of narrative which the writer of the brief deemed pertinent. This narrative affords the court an impression of the decedent, of his moneymaking activities, of his experiences with the contestant and of the final chapter of his life in which he fought unsuccessfully his last illness and consulted advisors concerning the disposition which he, as a bachelor without known relatives, should make of his estate. Two more of the appellants, the Bank of California and the Board of Trustees of Leland Stanford Junior University, united in a brief. The latter begins with a segment entitled Statement of the Case, eight pages long. That part seeks to develop more clearly the issues in which the two appellants who submitted the brief are interested. It mentions some facts unfavorable to the contestant (respondent). Those facts appear to be involved in controversy. This part of the brief gives occasional citations to the transcript of evidence. A fourth appellant, the State Board of Control, filed a short brief which begins with a “Statement”. The latter apparently is intended to usher in the State’s assignments of error. After the above briefs had been filed, the respondent Moran presented his, 206 pages in length. It is the one which is challenged by the motion under consideration. A part entitled Foreword opens the brief. Then comes a segment, 28 pages long, which begins — 362 — with the heading, Supplementary Statement of the Facts. The first few paragraphs of that segment are biographical in character. Seemingly the facts which they narrate of the birth of the decedent in Latvia and the hard work which he did as a toiler in the Oregon woods while he was conducting simultaneously successful operations in Portland brokerage houses are not involved in dispute. The larger part of the so-called Supplementary Statement of the Facts dwells upon the last three years of the decedent’s life. It describes the decedent’s association with the contestant Moran and reviews evidence which reveals how the decedent became acquainted with the physicians and attorneys who served him shortly before his death. The 28 pages under scrutiny contain no citations to the transcript of evidence or other part of the record. They are well written and, if accepted by the reader as accurate, incline the mind in favor of the respondent Moran. To indicate the nature of this part of the brief, we take from it the following: ‘ ‘ Greenberg telephoned Dr. Jesse Ray on Monday, April 16th to inquire how Miller was getting along, in response to which Dr. Ray told him that it was just a matter of time, that the man was dying, that he did not know how long he would last, and also that ‘incidentally, he is sorer than hell at you and this stockbroker Moran.’ When asked why, he quoted Miller as saying, ‘well, he signed a paper but doesn’t remember what he signed,’ and added ‘ANYWAY, HE’S CRAZY AS A LOON, ANYHOW. ’ Dr. Ray did not deny this conversation or the words just quoted.” We made the above resume of the opening parts of the briefs for the purpose of indicating that the three sets of brief writers have divergent views of the requirements of Rule 13 (A) 2 and 6 of this court. — 363 — Bires v. Barney, 203 Or 107, 258 P2d 120, sets forth the requirements imposed upon brief writers by Rule 13 (A) 2 and 6. The demands of those parts of Rule 13 are simple, but possibly compliance with the requirements is not easy. Rule 13 (A) 2 and 6 is designed to gain for this court, at the beginning of the appellant’s brief, an epitome of the case and its issues. It is not intended that detail should be incorporated in the statement of the case, and clearly nothing of a controversial nature should be inserted in the statement. Anyone performing appellate work, upon picking up an appellant’s brief, is gratified when he finds at the very beginning of it a short passage which acquaints him, with the case, the parties to the appeal, and designates in general the issues submitted to the court. The statement should denote the nature of the case by using a phrase such as “This is an action of trespass”. In a few words it should give an impression of the issues which were presented to the trial court, as, for example, “The plaintiff charged the defendant with negligence and the defendant countered with a general denial and averments of contributory negligence.” Obviously, the statement of the case ought to state whether the parties, or one of them, invoked trial by jury. If the ease was set for trial before a jury, the statement of the case should disclose whether a non-suit was granted or whether the trial judge directed the verdict. If the jury itself was responsible for its verdict, the statement should say in whose favor the verdict was returned. If the case was tried without a jury, the statement should indicate whether disposition was made of the case upon the pleadings or whether the court entered findings of fact. In all likelihood, the author of the statement of the case will find it necessary to add a few additional facts so that a — 364 — ready grasp of the appeal will be afforded. His basic purpose should be to introduce the case to the reviewing court and give a sufficient background of the challenged decree or judgment so that the reader can cope with the pages that follow. Brevity is highly desirable. Possibly the writer, in preparing his statement, will find it difficult to eschew advocacy and partisanship, but his writing will lose its point and do him little service if he introduces into it matters that are controversial. Argument and clarifying material must be reserved for later pages. In the preparation of the statement of the case, the attorney for the appellant should be for the time being a veritable amicus curiae. He should forget his client and center his full attention upon the seven members of this court. His purpose should be to produce a short statement of such an informative and impartial nature that his adversary will not have to add to it. In 18 Fordham Law Review 30, a former member of the New York bench, who has returned to the handling of litigation, publishes a dissertation entitled “Appellate Briefs and Advocacy.” By resort to a quotation from a brief which was submitted to a New York appellate court, he gives the following example of a statement of the case: “ ‘The defendant has appealed from a judgment in favor of the plaintiff in the sum of $10,146.88 entered after a trial in the Supreme Court, Kings County, before Nova, J., and a jury. Two jurors dissented. The cause of action alleged in the complaint arose out of an injury sustained in the yard of a public school which the plaintiff attended, when a ball, thrown, by someone, possibly another pupil, hit him in the face, destroying the sight of one eye and impairing that of the other. Negligence on the defendant’s part purports to be premised — 365 — on want of supervision over the children at play. The answer is a general denial.’ ” In 39 American Bar Association Journal 13, a capable member of the Detroit bar, who recently published a work entitled “Effective Legal Writing”, makes recommendations that can be employed in a statement of a case. We now return to the case before us. The briefs, we believe, have gone beyond the requirements of Rule 13 (A)2 and 6. With the exception of the one filed by the State, they include in the statement of the case reviews of evidence which are not contemplated by our rule. The fact that they have gone beyond the requirements of our rule is not a censurable fault, but, by glancing over the remaining parts of the briefs, we observe that repetition has resulted from first including in the statement of the case a resume of the evidence. Later, when the writer of the brief argues the assignments of error, he resorts again to some of the evidence which he included in the statement of the case. In this day of costly printing and multiplication of the number of appeals filed with the court, repetition is an evil. The absence of citations to the record in the challenged part of the brief filed by the respondent Moran is a serious defect. The author of those pages states that the facts which they narrate are free from dispute. Without attempting to be exhaustive, we compared some of the statements in his brief with corresponding parts in the brief submitted by the appellants, Cancer Society and Bank of California. In some instances the statements do not correspond. In will contest cases nuances and inconsistencies, even though they do not amount to contradictions, are often important. — 366 — It will be recalled that the motion under consideration is based in part upon a charge that the brief filed by the respondent Moran departs from the record. We have examined the charge and believe that the departures are trivial and incapable o.f misleading. The only part of the brief of the respondent Moran which gives us concern is the 27 pages which contain no citations to the record. The entire brief consists of 206 pages. All of it should not be stricken because a minor part is defective. The pages which we have described cannot be deemed a statement of the case, nor can they be regarded as a supplementary statement of the case. The 27 pages are well written and we believe that their penman intended that they should predispose the reader to the cause of the respondent Moran. Succeeding parts of the brief which argue the assignments of error revert to facts which are included in these defective pages and there, after dwelling upon their significance, give citations to the transcript of evidence. In that way, the needed citations are finally incorporated into the brief, but costly repetition of doubtful merit resulted from that method of handling the facts. From the foregoing it is seen that the respondents’ “Statement of the Case” includes material which is foreign to our Rule’s requirements and that the extraneous material has the vice of giving no citations to the transcript until it repeats itself in later parts of the brief. We believe that it is best to deny the motion to strike and to postpone action upon the infraction of our rules until the time has come to tax costs. Since the facts which are stated without citation are later repeated with proper citation, no one will be misled or subjected to serious inconvenience. In the event that — 367 — the ease takes a turn wherein the respondents are awarded costs, the appellants may at that time again call our attention to the defective 27 pages. In the meantime, we express the fond, but despairing, hope that the bar, before writing briefs, will give at least a glance at our rules. The sole purpose of our rules is to produce better briefs. We add that better briefs may yield better decisions and thereby in the end gain for the state better law. Motion denied.