Friday, December 3, 2010
This essay is authored by Professor Helen Anderson of U. Washington School of Law and is available at 11 J. App. Prac. & Process 1 (2010). From the abstract:
As one who teaches advocacy, and who has practiced in appellate courts, I wondered about the historical roots of the modern consensus of advice. A survey of brief-writing advice from the last century shows that neither ideas about brief writing nor those about the appellate brief itself have been static. In fact, researching brief-writing advice proved problematic because the very term "brief" has many meanings, and those meanings have changed over time. Using books and articles of brief-writing advice, Part II of this essay examines the changing nature of the brief during the early twentieth century and the transition from an abstract or outline to a fully fleshed prose argument. Brief-writing articles and books show a shift in emphasis from the purely logical argument to one that incorporates storytelling techniques and an artistic approach to the advocate's task. The ratio of written argument to oral presentation was the inverse of what it is today: Oral arguments would go on for hours - maybe even days - while briefs were for the most part only a few pages. The image of the scientist was replaced by the lawyer as artist and storyteller: Nevertheless, it is the central theory of this paper that brief writing is essentially a creative function in just as real a sense as writing dramas, novels, poems or short stories; that the greatest and most lasting satisfactions in life can be gotten from truly creative work; that thus really understood brief writing can become the most desirable and satisfaction-giving activity of the lawyer; further that the lawyer with the necessary equipment (principally a clear, emotional, as well as intellectual, understanding of the truth of this statement) the job will be attacked with pleasurable anticipation and zest. In the latter half of the twentieth century, the learned advice-givers continued to acknowledge the importance of the facts, but still spent most of their advice on logical argument and the technical aspects of brief-writing. These advisors integrated narrative, ethos, and logos with in-depth advice about use of authority and the proper construction of each section of a brief. Such an approach necessarily emphasizes logical reasoning over storytelling.