Learned Hand Throws a Brief
Some compliment: After huffing that the brief was too long and saying he would not read it, Hand threw it over the bench. It landed on counsel table with a thud. The youthful lawyer (-and future Justice) sitting there was left with a queasy stomach and a sinking feeling. If you want to avoid being pelted with your own handiwork, consult and follow the rules.
A lawyer writing a brief in the United States Supreme Court need consult only one set of formal rules: the Rules of the Supreme Court of the United States, which became effective in its current form on January 1, 1990. Those rules are clearly written and easily understood, as far as they go. Experienced Supreme Court litigators know, however, that certain Supreme Court practices do not appear anywhere in the rules.
For example: If a brief writer has cited materials in the brief and wants them readily available to the Justices, but those materials cannot be included in the joint appendix (perhaps because they are not part of the record), the Clerk usually will allow copies of the materials to be “lodged” with his office. (The materials must, of course, be served on opposing counsel.) The Oxford Companion to the Supreme Court of the United States (1992) mentions this technique, but only in the book‘s discussion of the Solicitor General — as if the procedure was somehow available only to the government. In fact, it can be used by any litigant who knows to ask the clerk’s office for permission to use it.
Because this useful technique (-and several others) are not in the rules, a Supreme Court brief writer ordinarily should consult the leading treatise on the nuts and bolts of Supreme Court practice. Popularly known for decades as “Stern and Gressman,” the book Supreme Court Practice came out in late 1993 in a seventh edition, written by Robert L. Stern, Eu