Advocacy at its best: the views of Appellate Staff Attorneys.

• Date: 22 September 2006
• Author: Merling, Joseph C.

1. 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.

2. 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)

3. THE SURVEY RESULTS

   1. Writing a Brief

      1. Structural Elements

         1. 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)

         2. 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 (3.59, SS8). These responses are roughly similar to those produced by the original survey. (6) It should be noted that the largest number of responses from the CASA survey fell into the strongly disagree category, with the rest of the responses evenly distributed across the other ranges. While many staff attorneys will verify the standard of review with their own research, these responses raise the question of whether appellees should state the standard of review if they disagree at all with how appellants have framed the standard.

         3. Conclusion

            The CASA respondents strongly prefer that the conclusion to the appellant's brief state precisely the remedy the appellant seeks (1.22, SS9). With only slightly less fervor, they agree that the respondent's brief should conclude with a precise statement of the outcome that the respondent seeks (1.36, SS10). The CASA respondents were closer to neutral, however, on whether the conclusion should forcefully sum up the merits in addition to stating the result requested (2.48, SS11). This result differed slightly from that of the California court, where the respondents indicated a "weak preference" for a conclusion that sums up the merits. (7)

         4. Summary of the Argument

            The CASA respondents believe that a summary of the argument section should be included in a long brief (1.88, SS12). They were less vigorous when asked if the summary of argument should be viewed as providing an opportunity to persuade the judge that differs from the opportunity available in the table of contents and the statements of the case and of the facts (2.07, SS13). They did strongly agree that a summary of argument should not simply repeat the issue headings (1.67, SS14). But they were more neutral than were the respondents to the original survey on whether a brief should include a summary of argument if the rules do not require it (2.33, SS15). As Baird and Kinnaird note, however, introductions are prevalent in briefs filed in the California courts, so the respondents to the original survey had a somewhat stronger preference against a summary, except in the case of an unusually long brief. (8)

      2. Writing Style

         1. Organization of Arguments

            The CASA respondents answering the survey strongly agree that a brief should be organized with its most persuasive arguments first (1.61, SS16). They are neutral when asked if a brief should be organized with its arguments placed chronologically (3.33, SS17). It should be noted, however, that seventeen staff attorneys disagreed mildly or strongly with this statement, while only eight agreed mildly or strongly with it. So as far as most staff attorneys are concerned, appellate counsel should place their most persuasive arguments first. The respondents in the original survey were not as vigorous in their approval of placing the strongest arguments first, but their responses were just as neutral as those of the CASA respondents in their responses to statements concerning chronological organization. (9)

         2. Quotations

            The CASA respondents mildly agree that they tend to skim blocked quotations longer than six or seven lines (2.44, SS18). While they are fairly neutral on this point, they strongly agree that long blocked quotations tend to lose the reader, so they prefer short quotations or paraphrased text (1.76, SS19). The results from those participating in the original survey were similar to those of the CASA survey's participants on both of these points. (10)

         3. Writing Points

            Respondents to the CASA survey strongly believe that a brief should not use legalese and old-fashioned pleading language (1.63, SS20). They are more neutral about a brief that uses the passive voice frequently (2.21, SS21). They are also fairly neutral about what Baird and...