“Too Many Notes”? An Empirical Study of Advocacy in Federal Appeals

Abstract

The warp and woof of U.S. law are threaded by the appellate courts, generating precedents on constitutional provisions, statutory texts, and common-law doctrines. Although the product of the appellate courts is regularly the subject of empirical study, less attention has been given to the sources and methods of appellate advocacy. Given the paramount place of written briefs in the appellate process, we should examine seriously the frequent complaint by appellate judges that briefs are too long and that prolixity weakens persuasive power. In a study of civil appeals in the U.S. Court of Appeals for the Ninth Circuit, we discover that, for appellants, briefs of greater length are strongly correlated with success on appeal. For the party challenging an adverse decision below, persuasive completeness may be more important than condensed succinctness. The underlying cause of both greater appellant success and accompanying longer briefs may lie in the typically complex nature of the reversible civil appeal. In light of our findings, the current proposal to reduce the limits on number of words in federal appellate briefs may cut more sharply against appellants. Experienced appellate advocates submit that familiarity with appellate courts, the honed ability to craft the right arguments with the appropriate style in briefing, and expertise in navigating the appellate system provide superior legal representation to clients. Our study lends support to this claim. We found a positive correlation between success and experience for lawyers representing appellees, thus warranting further study of lawyer specialization.

Inputs and Outputs on Appeal: An Empirical Study of Briefs, Big Law, and Case Complexity

“…In prior research on civil appeals, Sisk and Heise (2015:580) emphasized brief length and attorney experience. That study of Ninth Circuit appeals found that longer appellant‐side briefs were associated with judge votes to reverse.…”

“…Those studies are consistent with the possibility that information loads, advocate skills, and sequences all matter to outcomes. Appellate judges might pay most attention to the principal brief on the appellant's side in searching for a plausible case for reversal (Sisk & Heise 2015:596), then turn especially to oral argument, when available, and the appellee's attorney for a convincing response. Compare the idea that the appellant's brief sets the agenda of issues (Haire & Moyer 2008), and that “the sequential process of filing briefs places more of the burden of transforming a case from the trial posture on the appellant's attorneys” (Moyer et al 2013:73).…”

“…Compare the idea that the appellant's brief sets the agenda of issues (Haire & Moyer 2008), and that “the sequential process of filing briefs places more of the burden of transforming a case from the trial posture on the appellant's attorneys” (Moyer et al 2013:73). Those sequencing‐related ideas found partial support in Sisk and Heise (2015) and Samaha (2017): in judging the appellant's brief, more information appeared to be better, as measured by words.…”

“…Another possibility is that longer appellant‐side briefs correlate with more complex trial court proceedings (Frey & Englert 1994:8), and that such complexity correlates with reversible error. The causal driver of votes to reverse might be the errors associated with the complexity that was hardwired into the case before any notice of appeal was filed (Sisk & Heise 2015:580; Samaha 2017:603).…”

“…First steps were taken in earlier work. Sisk and Heise (2015) and Samaha (2017) investigated how judges on a federal court of appeals responded to brief length, issues presented, and sources cited, along with attorney experience and party type, in civil cases that were terminated on the merits. A lengthier brief on the appellant's side was associated with judge votes to reverse, not affirm, for instance—yet a larger number of issues presented was associated with votes to affirm.…”