November 2015 Bar Bulletin
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November 2015 Bar Bulletin

On Making an End

By John N. Rupp


A recent incident caused me to reflect on the remarkable difficulty that many of us have in bringing a brief or an argument, or, indeed, almost any speech or written statement, to an appropriate conclusion.

The incident was that, at the start of his argument before an appellate court, counsel asked to be informed when he had two minutes left of his allotted time. When the time came and he was so informed, he paused, shuffled his notes, said, "In conclusion, your honors, ..." and then told the court the same things that he had already told it. Finally he said, "Thank you, your honors," and sat down.

What an ineffectual performance, I thought, and yet how many times have I heard the same sort of thing, and been guilty of it myself. And I got to wondering whether The Gettysburg Address would really have been improved if Lincoln had paused, looked at his watch and said:

"And, in conclusion, my friends, may I say that I do hope that we here will highly resolve that these dead shall not have died in vain, that this nation under God shall have a new birth of freedom, and that government of the people, by the people, for the people, shall not perish from the earth.

I thank you for your kind attention."

Let us deal first with this "Thank you" business, with a view to its eradication from arguments and speeches. It is hard to think of a situation where it is appropriate. Even in a speech it is superfluous, and more important, it is a distraction. Usually your appearance as a speaker is the result of an invitation, and, especially if your speech is a good one, the thanks should go the other way. (If you make a poor speech, thanking the audience won't help.) There may be occasions where you have volunteered, or have thrust yourself on the audience, and believe that you should express your appreciation at having been allowed to come. In those situations your thanks should come at the beginning of your remarks, not at the end.

Thanking a court for listening to your argument is, however, completely out of place. Not only that, but some judges actively resent it. The only time you thank a court is when the court has extended you a courtesy. Courts don't want to be thanked for doing their duty. And the supreme gaucherie is to thank a judge for ruling your way - the judge ruled that way because it was right, not because he or she was being nice to you or your client. A gentle judge will merely raise eyebrows, a brusquer judge is likely to tell you to save your thanks.

I leave the "Thank you" aspect and move on to "In conclusion, your honors, ..." as used near the end of an argument, and to its counterpart as used in a brief.

I think of the countless hours that have been spent in composing ringing perorations to arguments or in writing brilliant "CONCLUSIONs" in briefs. And I think of the correlative, namely the scant minutes that I suspect that judges spend on reading or listening to those carefully composed words and on the slight impact which I believe those final effusions have on the judicial mind. Think of your own experience - when you are listening to an argument or reading a brief, and counsel says, "Finally ...," or when you come to a section headed "CONCLUSION," does not your mind sort of, shift into overdrive and skip along to the end? How many times have you been swayed by a "CONCLUSION"?

Thinking back over all the classy Conclusions that I have composed over the years, I can remember only one that I think had any significant impact, and that one arose from a purely fortuitous circumstance. In that instance my opponent had called an expert witness named Magill. In his testimony Magill illustrated his major point by quoting a line from Milton: "They also serve who only stand and wait."

The quotation was apt, and all might have been well for him except that counsel was, to say the least, hardly a student of English literature, and when he came to write his brief he alluded to "Mr. Magill's quotation of that splendid line from Milton's great poem, 'Paradise Lost.'" Oh, boy! So I got to conclude my brief with a one-sentence paragraph to the effect that we were much moved by Mr. Magill's quoting Milton and were obliged to counsel for reminding us of it; that we were constrained to point out, however, that the line does not appear in "Paradise Lost" but rather in another poem by Milton - one with the remarkably appropriate title of "On His Blindness."

And I remember my father's telling me, "Well, they may not remember anything else in your brief, but they'll remember that last paragraph." And they did.

Felicitous circumstances such as that occur only rarely, and, while they must be promptly seized and savored, one is seldom lucky enough to encounter them.

Most Conclusions, then, are pretty dull stuff. You can't very well put new material in a Conclusion, so what you usually do is compose what strike you as brief, hard-hitting sentences or paragraphs which sum up what you have already said. And I submit that if you have already said it well and said it right, there is no need for such a Conclusion. When you come to the end of what you want to say, stop. Even if you are one of those who think that your reader or auditor won't get it the first time and has to be told twice, you will have done that before you come to your Conclusion. So finish what you have to say and then stop.

As an aside I point out that in many court arguments, especially in appellate courts, you are strictly limited as to time. The fact, however, that you have, say, thirty minutes does not mean that you are required to take the whole thirty minutes. If you don't need the whole time, don't take it. I have never known a court to reprimand counsel for using less time than that allotted.

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