Advocacy at Its Best: The Views of Appellate Staff Attorneys

I. INTRODUCTION TO THE SURVEY The American Bar Association's Council of Appellate Staff Attorneys challenges its members to provide the appellate judges of the United States with the very best legal analysis and writing possible. As part of that endeavor, the organization seeks to provide all appellate practitioners with the views of staff attorneys on the practices best able to earn the respect of the judges and to maximize the chance of success on appeal. Knowing that two California attorneys had published a groundbreaking article in 2002 addressing advocacy preferences in a California appellate court, (1) CASA's leadership decided in 2003 to distribute the survey behind that article to a reasonably representative sample of its membership. This was accomplished at CASA's annual seminar in 2003, which was attended by staff attorneys from across the nation who represented federal and state appellate and supreme courts. What follows is a comparison of the responses given by the staff attorneys surveyed in 2003 with the responses gleaned by the original Bird and Kinnaird survey. II. INTERPRETING THE RESULTS The survey consisted of eighty-six statements, each followed by an agree-disagree scale ranging from one to five. The survey participants were instructed that three indicated a neutral response to the statement; one indicated strong agreement; and five indicated strong disagreement. Forty-two CASA respondents answered the survey. This article reports the results of individual statements as simple mean scores, stated in parentheses after the statement to which the score applies. If all forty-two participants responded to a statement, the sum of the value of their responses was divided by forty-two. If fewer responded, the divisor was reduced appropriately. The resulting score seems to provide a reasonable measure of the overall intensity of the participants' views on each topic addressed by the statements in the survey. Values at or near three indicate neutrality. Values below two indicate a strong positive preference, and values above four indicate a strong negative preference. The values can mask subtleties in the data, however, and where such subtleties occur, they are discussed in the text. (2) Mean scores are reported parenthetically in the text, each accompanied by an "SS" number indicating the statement to which it relates. (3) And a series of five charts tabulating all of the survey data appears in the appendix to this article. (4) III. THE SURVEY RESULTS A. Writing a Brief 1. Structural Elements a. The Introduction The CASA respondents surveyed were neutral on whether the table of contents should tell the story of the case rather than just being a guide to finding subjects (3.02, SS1). The answers to this question were fairly evenly distributed across the range of possible responses. The implication from these responses is that a standard table of contents with topic headings in short phrases is acceptable. Full sentence topic headings that tell a story are not necessary. The CASA respondents do expect that the statement of the case will provide the procedural posture of the case (1.40, SS2). They also expect that the statement of the case and the statement of the facts will identify all the parties in the appeal (1.43, SS3). They strongly believe that the statement of facts should include the case's critical facts (1.17, SS4), but were less concerned that the statement of the case identify the case's dispositive issues (2.23, SS5). They were strongly opposed to a statement of the case that argues the merits of the appeal (4.12, SS6). (5) b. Standard of Review The CASA respondents strongly expect the appellant's opening brief to state a standard of review (1.34, SS7). They differ on whether they will assume that the appellant has stated the standard of review correctly when the appellee's brief omits a standard of review (3. …