Remembering John W. Davis: The Oral Argument of an Appeal, By Michael B. King

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Volunteering for an article about oral arguments on appeal, I asked myself, “What could you bring to this topic that would be truly fresh and original?” Promptly answering that question, “Nothing whatsoever,” I considered abandoning the enterprise for another subject, except for two things. First, I really like oral arguments they are my favorite part of the appellate “business,” and if I couldn’t come up with something useful to say on the subject, well. . .

Second, I was reminded that perhaps the greatest appellate advocate of the twentieth century, John W. Davis—member, Davis, Polk & Wardwell, Solicitor General of the United States, Ambassador to the Court of St. James under President Wilson, Democratic Party nominee for President in 1924—found himself in a similar predicament some 60 years ago, when preparing an address on the very same subject to be given to the Association of the Bar of the City of New York. (Davis’ address is printed in volume 26 of the American Bar Association Journal (1940), at pages 895 through 899; it will be cited here simply as “Davis.”) Initially describing the topic of oral argument as “well worn,” Davis concluded his “decalogue” with this comment:

I am . . . painfully conscious . . . that I have offered nothing new concerning the subject in hand. I have not even been able to cover old thoughts with new varnish. How could I have hoped to do so? The process of appeal from one tribunal to another is very old in the history of human justice. No matter in what form it is carried on the essentials of an appeal are always the same, and there is nothing very new to be said about it.

Davis, at 895, 899.

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