# Bires v. Barney > Oregon Supreme Court · December 15, 1954 · 203 Or. 107 URL: https://www.frixlaw.com/law-library/cases/6909494 ## Case - **Full name:** BIRES v. BARNEY - **Court:** Oregon Supreme Court - **Decided:** December 15, 1954 - **Citations:** 203 Or. 107; 254 P.2d 234; 1954 Ore. LEXIS 280 - **Precedential status:** Published - **Opinion:** On motion to strike by Rossman - **Judges:** Eossman, Latotjrette, Peeey, Perry, Rossman, Warner - **Cited by:** 3 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6909494 ## Opinion text On Motion to Strike Appellants’ Briee ROSSMAN, J. This case is before ns upon a motion made by the respondents to strike from our files the brief filed by the appellants upon 'the ground that the brief fails to comply with Rule 13 (A) 6, which follows: “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 decree of the circuit court which is challenged by the appeal was entered in a suit brought by a local labor union, its officers and many of its members to gain reinstatement by judicial decree after they had been suspended by an order of their national union, the Brotherhood Railway Carmen of America. The brief under attack is 23 pages in length and makes many references to the evidence. It, however, cites no page of the transcript of evidence and contains no reference to the exhibits whereby any of them can be readily identified. The transcript of evidence is 829 pages in length and the written exhibits are 125 in number. Many of them are bulky. The following statement contained in the respondents ’ motion to strike appellants ’ brief has not been disputed by the appellants: “The issues presented on appeal depend largely on questions of fact.” Our perusal of appellants’ brief confirms that statement. In replying to the respondents’ attack upon this brief, appellants’ counsel state: “1. Appellants allege that Respondents’ Motion is not well taken for the reason that if there were omissions of reference to the evidence in Appel- •>. lants’ Statement Of The Case, that Rule 13 (2) of this Court provides an ample remedy to the Respondent as follows: *113 ‘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.’ “The Respondent is provided with a further remedy by reason of Rule 13(7) (B) as follows: ‘____No statement of facts need be made beyond what may be deemed necessary in correcting any inaccuracy or omission in the statement of the appellant.’ “2. Appellants urge that Respondents’ Motion is not well taken for the further reason that Appellants have not made specific reference to items of testimony or specific exhibits within the meaning of Rule 13(a) (6). In the presentation of Appellants’ Brief, a summary is made of the facts contained in Appellants’ ‘Statement of the Case.’ In the argument portion of the Brief, comments are made upon the evidence contained in the case, but no specific reference is made to particular statements of witnesses or exhibit. It is counsels’ construction of this rule that its intended purpose is to make reference to particular items of testimony set forth in haec verba which for some reason are objected to or when reference is made specifically to some exhibit introduced in evidence which may have been objected to or to which some particular reference may have been made.” Clearly, it is not the duty of the respondents to complete the brief of the appellants. When a rule places upon a party the duty to supply citations, the duty is his. Moreover, a party who moves to strike from the files a brief deficient in citations may be unaware of any pages in the transcript which warrant the statements made in the attacked brief and, therefore, could not make the lacking interpolations. At any rate, this *114 court insists that the writer of the brief, and not its adversary, must supply the citations. The rules of this court which govern the composition of briefs are simple and their appropriateness has never been questioned. They allow counsel the widest degree of forensic freedom and demand only that when he recounts the evidence he note the pages of the trancript upon which he depends. Rule 13 (A) 2, to which the appellants’ quoted statement refers, requires that the brief of the appellant shall begin “with a clear and concise statement of the case, which statement should not contain a detailed recital of the facts.” The purpose of that requirement is to obtain from counsel for the appellant at the very beginning of his brief a succinct, impartial statement of the case which afford the court a ready insight into it. Occasionally a brief begins without even saying “This is a suit to quiet title” or “This is an action for libel”. Introductory statements of that Idnd are invitations for the court to step into the dark. The statement of the case should be informative, impartial and not argumentative. It should contain nothing which comments or expounds. The disputative efforts of counsel should be postponed until he argues in behalf of his contentions or his assignments of error. The purpose of the statement of the case should be nothing except to acquaint the court with the case and its nature. A good statement of the case, impartial in nature, is read with gratification by all who perform appellate work. Since a statement of a case rarely refers to a single episode, it is generally unnecessary to insert in it a citation to the evidence. The rules of this court are not the only ones which require counsel for the appellant to begin his brief with a statement of the case. A glance at 4 CJS, Appeal and *115 Error, §§ 1318 and 1319, will indicate that court rules commonly require the opening brief to contain a clear, accurate and succinct statement of tbe case. Some rules require the statement to be more detailed and extensive tban ours. Tbe text just cited says: “The purpose of tbe rule requiring a statement of tbe case is to aid tbe court in quickly obtaining a comprehensive grasp of tbe facts of tbe case; and it is intended that from tbe statements in the brief tbe court may comprehend tbe questions involved and its business be expedited.” Tbe Honorable Arthur T. Vanderbilt, who is now Chief Justice of the Supreme Court of New Jersey, before bis appointment to tbe bench conducted successfully a large appellate practice. His admonitions should have value for all who write briefs. In delivering tbe 1950 Jobn Bandolph Tucker Memorial Lectures before Washington and Lee University, be declared. “In most jurisdictions a succinct statement of tbe question or questions to be argued is tbe first element of a brief. This is to aid the court in reading the statement of facts that follows intelligently in the light of tbe issues. Yet many counsel vitiate this requirement by obscure and verbose statement of tbe questions to be argued. Why they do so is an unsolved problem of abnormal legal pysehology.” Forensic Persuasion, p. 20. Tbe brief under consideration devotes eight and one-half of its 23 pages to a statement which bears tbe beading “Statement of tbe Case”. The nature of tbe statement indicates that counsel have misconceived tbe purpose which Bule 13 (A) 2 serves. They evidently believe that the statement should be argumentative rather tban serve as an impartial introduction of tbe case to tbe court. Their statement, instead of attempting to acquaint tbe court with tbe case, seeks to commend tbe case to the court. *116 Rule 13 (A) 6, says: “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.” Faithful observance of the rule just quoted serves many useful purposes of which the following are only a part: (1) the rule operates as a restraint upon the impulse which many feel to go outside of the record; (2) it inclines counsel to make an accurate statement of the facts; (3) it enables counsel for the other party to check the accuracy of his opponent’s brief and thus helps to bring the controversy to a narrow focus; (4) it aids this court to acquaint itself with the facts; (5) by developing the actual facts it may help to yield what all seek — a correct decision — and thus obviate the necessity which otherwise might exist of filing a petition for a rehearing. Chief Justice Vanderbilt, in the lecture from which we quoted, said: “* * * And may a kind fate help the lawyer who neglects to cite the appropriate spots in the record to justify his statement of facts and vainly expects the court to analyze the whole record for him in a hunt for something that it was clearly his duty to point out to the court. Worse yet is it for counsel to give an incorrect citation, either by design or mistake. But the most unpardonable offense of all is to cite a page and line of a record for a statement of fact made in the brief when no such fact appears on the cited page — * * The Honorable Raymond S. Wilkins, a distinguished member of the Federal bench and author of the scholarly work “Eternal Lawyer; A Legal Biography of Cicero”, in delivering a lecture entitled “The *117 Argument of an Appeal” before the Cornell Law School, said: E. B. Sahlstrom, of Eugene, argued the cause for appellants. On the brief were Thompson & Sahlstrom, of Eugene. “The facts must be fittingly set forth with supporting references to the record which are accurate and explicit. Nothing will forfeit the confidence of the court more effectively than the misstatement of the record or the statement of a fact off the record.” 33 Cornell Law Quarterly 40, and 34 Mass. Law Quarterly 13, (July, 1949). It is apparent that the appellants’ brief, in failing to cite in support of statements which it makes the pages of the transcript or the identifying letter of an exhibit, violates the rules of this court. We think that the violations are material and prejudicial to the court’s efforts to decide cases correctly. The matter in hand is apparently one of grave consequence to the parties. The record, as we have seen, is an extensive one. To search through 800 pages of transcript of testimony and through more than 100 extensive documents in search for an avowed fact is no slight task. We do not believe that our rules place upon counsel an undue burden when they require him to mention the part of the record upon which he depends for a statement of fact in which he indulges. The motion to strike the appellants’ brief will be sustained. Thirty days will be granted within which to filed a new brief in conformity with the rules of this court. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6909494. Public record. Not legal advice.