Common Knowledge about Appellate Briefs: True or False?

I. INTRODUCTION We receive advice on an endless number of topics from a wide-range of sources throughout our lives and our careers: our parents, siblings, and other relatives when we are young, professors and tutors in college, and associates, partners and other peers after we begin to practice law. And that does not even account for the innumerable articles, books and other media sources we read, see or hear over the years that tell us how others have solved problems and what is the "best" way to do just about anything. Whether we acknowledge it or not, there is an obvious caveat included with any advice we receive. Is it any good? Is it reliable? And if we believe that it is, why is that so? Are we simply accepting it on faith, based in whole or in part on its source? Or are we simply trusting that the common wisdom on a particular topic is correct? There is no shortage of advice and common knowledge when it comes to appellate brief writing, as anyone who practices appeals knows. Seemingly everyone has an opinion on how best to write a brief to persuade appellate judges to rule in your client's favor. The problem with appellate brief writing advice, however, is the same as with advice on any other topic: How do you know if it is any good? If it is not coming directly from appellate judges, why should we follow it? John W. Davis captured the essence of this problem in the oft-repeated passage from his famous article of some sixty-five years ago: "[W]ho would listen to a fisherman's weary discourse on fly-casting ... if the fish himself could be induced to give his views on the most effective methods of approach." (1) Because I agree with Davis, I surveyed appellate judges in New England and New York to determine whether the accepted wisdom was true for appeals in general and for appellate brief writing in particular. (2) I have set out some of my findings in this article in an attempt to help the appellate brief writer decide when the common knowledge about appellate brief writing is true, when it is false, and when the answer may lie somewhere in between. II. METHODOLOGY I mailed a survey that consisted of eighty-six questions divided into seven separate sections to all of the state and federal appellate judges in New England and New York. As this list demonstrates, each section covered a different topic relevant to appellate practice, with a focus on brief writing: 1. The Structural Elements of Briefs; 2. Writing Style and Advocacy; 3. Use of Authority and the Record; 4. Typography of Briefs; 5. Physical Characteristics of Appellate Work Product; 6. Frequency of Certain Errors; and 7. Oral Argument. (3) The questions in each section sought to discover not only the advocacy preferences of the judges on those topics, but the strength of their convictions on these issues as well. To accomplish this goal, the questions in six of the sections provided the judges with Likert scales consisting of five answer choices ranging from strongly agreeing with a question asked (1) to strongly disagreeing with a question asked (5) with no preference in the middle (3). The remaining two choices (2 and 4) were intended to express essential, but not strong, agreement or disagreement with the question's premise. The questions in the one non-Likert scale part of the survey, however, sought a different type of information from the judges. In the "Frequency of Certain Errors" section, the judges were given nine particular attributes of appellate briefs that judges, research attorneys, staff attorneys, and attorneys appearing before appellate courts would all be likely to regard as errors. The questions then provided three categories of cases-General Civil, Criminal, and Family--and asked the judges to estimate how often each error occurred in that category of case. In this section, the judges could choose from among six choices for each type of case: 0-10%, 11-20%, 21-30%, 31-40%, 4150%, and 51%+. …