Friday, February 27, 2015

Successful Appellate Briefs

The results of an empirical study correlating success in the Ninth Circuit Court of Appeals with the length of appellate briefs and the experience of the lawyers writing the briefs found a correlation with longer briefs and experienced lawyers:

Does greater experience in federal appellate work by a lawyer make that lawyer’s client more likely to prevail on appeal? The short answer from our study of civil appeals appears to be “yes,” at least for one side of the adversarial divide (appellees). Based on this intriguing finding and prior work by other scholars, the evidence grows that attorney experience matters in general and attorney experience in appellate work matters in particular. 

Does setting out to write the most succinct brief pave the way to appellate success? The short answer from our study, for appellants in civil appeals where both sides are represented by counsel, appears to be “no.”

The authors warn that longer briefs is not the key to success:

 But that cannot mean that fattening an appellate brief with more words is a promising strategy for appellate victory. The results are better understood as indicating that an appellant must do a thorough briefing job and not truncate necessary points for brevity’s sake alone. Rather than bolstering a foolish entreaty for wordiness, the results indicate that the appellate advocate needs to be given some breathing room to make the tailored argument, calibrating the necessary length of the brief to the underlying complexity of the case.

Gregor C. Sisk & Michael Heise, “Too Many Notes'? An Empirical Study of Advocacy in Federal Appeals.

It makes sense that more experienced lawyers are more successful. As for the length of briefs, I would like to know if the longer briefs correlate with more complex issues and if more complex issues correlate with a better chance of success at the appellate level. I doubt that the shorter briefs result from the writers being overly concerned with wordiness.


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