What's the Difference? Comparing the Advocacy Preferences of State and Federal Appellate Judges

I. INTRODUCTION Over the past several years, I have investigated the attitudes of appellate judges regarding various components of lawyers' advocacy on appeal. This article reports on the current results of my survey, which consisted of eighty-six questions divided into seven sections. I mailed this survey to all of the state and federal appellate judges in New England, New York, and the Mountain West in the hope of determining whether state and federal judges look at different aspects of appellate practice differently. I received responses from 138 judges, which amounts to over forty-nine percent of those who received the survey. Some earlier results of the survey were presented last year in the Journal of Appellate Practice and Process. (2) But that article only reflected some of the responses, and it included none from the judges in the Mountain West. The graphs shown in this article, in comparison, present the responses to every question in the survey from every judge who responded. II. METHODOLOGY Each of the seven sections of the survey covered a different topic relevant to appellate advocacy: 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. The questions in each section sought to discover not only the advocacy preferences of the judges on those topics, but also the strength of their feelings. To accomplish this, the questions in six of the sections provided the judges with a Likert scale consisting of five ranked answer choices ranging from strongly agreeing with a question asked (indicated by the judge's choosing "1") to strongly disagreeing with a question asked (indicated by the judge's choosing "5"), with no preference in the middle (indicated by the judge's choosing "3"). The remaining two choices were basic agreement or disagreement (indicated by the judge's choosing "2" or "4," respectively). Mean values as well as standard deviations were calculated for each individual federal and state court, and for all the courts, federal and state, within each of the First, Second, and Tenth Circuits. The questions in the lone non-Likert scale part of the survey, however, sought a different type of information. In Section Six ("Frequency of Certain Errors"), the judges were given nine particular attributes of appellate briefs that appellate judges, research attorneys, staff attorneys, and advocates would all generally agree are errors. The questions then provided the judges with three categories of cases: General Civil, Criminal, and Family. The judges were then asked to estimate how often the particular error occurred in that category of case by choosing a percentage for each category of case: from zero to ten percent, eleven to twenty percent, twenty-one to thirty percent, thirty-one to forty percent, forty-one to fifty percent, or over fifty percent. III. UNDERSTANDING THE GRAPHS The survey results presented here remain in their original sections, and they are in order, so the article shows the results in the same context in which the judges saw the questions. The graphs in all of the sections other than Section VI (which was measured using a different scale), show how strongly the judges agreed or disagreed with the premise underlying a particular question. In each graph, the column height reflects the mean response of the judges. The graphs generated from judges' answers to Section Six of the Survey (shown in Section IX of this paper) are somewhat different. They indicate through percentages how often an error appeared to the judges to be occurring for each type of case. The graphs in this Section are also not broken out to reflect any state and federal differences; for this Section--but only for this Section--all of the judges' responses are presented together. …