Changing fashions in advocacy: 100 years of brief-writing advice.

AuthorAnderson, Helen A.
  1. INTRODUCTION

    American appellate practice is accomplished mainly through the written word, and there seems to be a modern consensus about what constitutes a good appellate brief. Books, articles, and continuing legal education materials tell the appellate advocate to be succinct, to organize arguments clearly, and to present facts and law truthfully yet persuasively. The ideal appellate advocate is a careful strategist and accurate researcher who writes crisply and credibly. The power of emotional or narrative arguments has not been stressed--although this may be changing--because appellate judges are presumed to be less emotional than juries. As one who teaches advocacy, and who has practiced in appellate courts, I wondered about the historical roots of the modern consensus of advice. Has the accepted approach to brief writing always been thus? 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. Written legal arguments were less common in the nineteenth century, and the modern appellate brief--a lengthy argument based on substantial authority--evolved over time from a short outline of point headings. (1) A key factor in this change is no doubt the rise in importance of written argument and the diminishment of oral argument. (2) When appellate litigators were primarily orators, and briefs merely the oral argument handout, the lawyer's argument was conveyed by his (3) voice and manner as well as his words. Emotional appeals could be presented orally yet never make it into the written brief. The advocate's credibility could also be established in person. When the entire burden of persuasion shifted to written documents, more attention had to be paid to every aspect of that writing. The brief could no longer be only an abstract of a logical argument. Thus, the modern American appellate brief is actually a fairly recent development.

    Because of this transition from an oral legal culture to a written one, scant written advice about brief writing (or brief making, as it was called) comes to us from the late nineteenth and early twentieth centuries. In contrast, today there is a mountain of written advice for lawyers and law students.

    And yet, even with this profound change in the nature of the brief, the materials I found show a shift during the early decades of the last century, a shift that is recurring in our own time. At the end of the nineteenth century the ideal lawyer-writer was the careful scholar or scientist who approached briefing as a logical or mathematical puzzle, and whose only object was to help the court uncover the truth. This ideal gave way to a view of the legal writer as an artist or novelist whose most important job was to craft a compelling story. Such a shift fits with the philosophical change from classical legal formalism to legal realism in the early twentieth century. As judges and scholars began to emphasize the intuitive aspect of judging and downplayed the role of rational argument based on objective, discoverable legal principles, the lawyer's role came to be seen as that of an artist seeking to move judicial hearts, rather than a scientist assisting the court in a search for the law. (4)

    Such an argument can be taken too far. Practicing lawyers have always recognized the importance of storytelling and emotional appeals as well as the need to know the law. The debate between those who favor pure reason in legal argument and those who emphasize the emotional or narrative aspects of argument has been around at least since Aristotle and Plato. (5) We heard echoes of this ancient debate recently in the confirmation hearings for Justice Sotomayor, in which some maintained that judges should be umpires who apply neutral principles and others sought judges with empathy. (6) This disagreement about the nature of law and the role of those principles and qualities in the legal system is a persistent one.

    But it is also clear that logos and pathos (7) seesaw up and down in relative importance over time. At certain times, such as the turn of the last century, logos was in ascendency. A few decades later, narrative and "making the facts talk" (8) was emphasized. We may be in a similar period today, at least in the legal academy, as scholars discover and promote the use of narrative and storytelling in advocacy. (9)

    At the same time, some aspects of brief-writing advice have remained remarkably consistent over the years. The authors plead for clarity, logical organization, accuracy, and conciseness. Ours seems to be a profession persistently criticizing its own language, constantly engaged in a quest for clarity, even as literary styles and legal philosophies change. One judge complained in 1908 that lawyers no longer took the time to carefully craft briefs with quill and ink, but instead dictated pages of rubbish to stenographers. (10) We hear similar complaints about lawyers cutting and pasting pages of rubbish with their computers today.

    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. Part III looks at the ways in which the ideal written argument changed from the beginning until the middle of the last century. 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. This shift in the advice followed in the wake of the legal realists. Part III also examines how, as the century went on, the emphasis of the advice givers shifted slightly back to logical argument once again, although they continued to recognize the importance of the facts. Finally, Part IV discusses some of the themes in brief-writing advice that persisted even through all these changes.

    I have not attempted a thorough survey of this topic, although it is certainly worthy of more in-depth scholarly attention. From the middle of the twentieth century on, brief-writing literature increased substantially. A thorough evaluation of brief-writing advice from 1905 until now would be a major project. Instead, this essay looks at a sampling of the advice, focusing on the early part of the twentieth century.

    This short historical survey of advice shows that the modern American appellate brief is not a venerable tradition, but a fairly recent invention, both in form and in substance. Ideas about the relative importance of narrative and logic are anything but fixed. Knowing this history should give us some perspective on our own approach to written advocacy, and should also free legal educators, lawyers, and judges to consider alternative ways of presenting argument to appellate courts.

  2. THE CHANGING NATURE OF THE BRIEF

    Law students today learn that "brief" has at least two meanings: the case briefs that they learn to write during the first weeks of law school and the persuasive briefs that lawyers write on behalf of their clients. Historically, the term had additional meanings. Originally, a brief was exactly what the name implies: a short abstract of the argument a lawyer would make orally. 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. (11) But the evolution from abstract to the fully fleshed modern brief was not straightforward, nor was it perfectly tied to the availability and length of oral argument. Even in the eighteenth and nineteenth centuries, lawyers sometimes submitted cases to the appellate courts without oral argument and we sometimes encounter references to briefs in those days that are hundreds of pages long. (12) It is not clear how much of those briefs was argument, and how much was excerpts from the record or other material. For example, the original Brandeis brief, filed in the 1908 case of Muller v. Oregon, (13) was 113 pages long, but only a few of its pages were legal argument. The remainder was data supporting the argument. (14)

    Legal argument and decisionmaking (15) were primarily oral during the first century of the republic. For that reason, perhaps, there is little written advice about legal...

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