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157 9 May It Please the Court Superficially, appeals in 1918 were not much different than they are now. If he wishes to appeal, the losing party was and is responsible for two main tasks: seeing that the history of the case in the trial court—the written pleadings, testimony, and exhibits that together are the “record”—is assembled for transfer to the appellate court and writing a paper for the appellate court—the “brief ”—that explains the facts of the case and how the trial court erred. The losing side also sends that brief to the winning side. The winning side then has its chance to file a brief, defending the result in the trial court. The losing side next may file a reply brief. Often, the appellate court then will hear oral arguments from lawyers for both sides. Finally, in due course, the appellate court issues a written opinion explaining its reasons for either affirming the result in the trial court or reversing the result there because of some error or errors. Depending upon the reasons, a reversal may mean the end of the case (the former loser now is the winner and the case is over) or just a do-over in the trial court, with instructions from the appellate court on how to avoid repeating the mistake. Most of the time, the loser in the trial court also is the loser in the appellate court. Appellate judges tend to favor finality, dislike the perceived waste of ordering a mulligan, and bend to cover for a fellow judge in the trial court. But the appellate process allows courts to correct at least glaring errors. In general, this was the process that Darrow and Zabel undertook in the spring and summer of 1918, as eleven Italians labored behind prison walls in Waupun. Then as now, an appeal from a trial verdict might take a year or more to run its course. Beneath the broad similarities, though, appellate procedure also was different in important ways in 1918. The differences start in the technology of the times. Until the modern stenotype machine caught on in the 1930s and later,1 so-called court reporters—the stenographers who record what everyone says in court—had 158 May It Please the Court no mechanical aid. They had to rely on pencil and shorthand. As a practical matter, that meant trials were not always transcribed verbatim in full as they are today. With or without today’s complete verbatim transcriptions, the parties had to confront the question of what issues the losing side could appeal. Then as now, the usual rule was that a lawyer had to object contemporaneously, if he thought that the trial judge was making a significant mistake. The reason for that rule is straightforward: if one calls a mistake to the attention of the trial judge, he has the chance to correct himself then and there, which may spare everyone the time, expense, and nuisance of an appeal later. Also, on occasion when there was no verbatim transcript, the parties later might dispute exactly what the witnesses or the lawyers and the judge actually said. Those disputes could become critical if one side or the other appealed the trial court’s judgment.2 The solution to both problems was to prepare a “bill of exceptions” listing all of the rulings at trial that the losing party might wish the state supreme court to review on appeal. So typically, a lawyer in trial might stand and interrupt proceedings with “Objection . . . ,” after which he would state his grounds. The opposing party might respond with argument about why the objection was not right. The judge then would rule: “Sustained” or “Overruled,” perhaps with a short explanation of the ruling. If the objection was overruled, the objecting lawyer then would close the discussion with “Exception.” By that, he signaled to the judge and the court reporter that he wished to save the point for appeal, if the case did not go his way. Whether the lawyer noted an exception at the time or did not, part of the process of pursuing the appeal and readying the record for the supreme court’s review was preparing a bill of exceptions. The bill was a comprehensive list of all exceptions to the trial judge’s rulings that might serve as bases for claims of error that the losing side wanted the supreme court to consider. If it chose, the supreme court could review mistakes that...

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