DEPARTMENT MODERN LEGAL WRITING
DAVID LEWIS, J.
This four-part article series summarizes the results of surveys sent to state and federal appellate court judges to evaluate their advocacy preferences. This part 3 discusses the advocacy preferences of appellate judges at oral argument.
As discussed in parts 1 and 2 of this series, several years ago I began sending surveys to state and federal appellate court judges around the country to learn more about their attitudes regarding various aspects of appellate advocacy. My interest was both professional and personal: I have been litigating civil and criminal appeals in state and federal courts for over 20 years, love what I do, and am always striving to make myself better at it. I also act as a consultant for lawyers who don't litigate appeals as often as I do and wanted to conduct research that would make my advice as helpful and informed as possible.
This article provides the data results for the study's key findings regarding oral argument. It begins by briefly describing the surveys and how to interpret a graph of the results so that you can better understand and apply the data when appearing for your next appellate (or trial) hearing. It also summarizes some of the most important takeaways from the study. While much of what I learned was confirmatory, a few things surprised me.
Methodology of the Survey
Over the course of several years, I sent surveys to all federal and state appellate judges within the federal First, Second, Third, Seventh, and Tenth Circuits. The courts surveyed comprise 39 appellate courts in 18 states. (New Jersey did not give me approval to survey its judges, which is why the numbers are slightly "off.") I received responses from 192 judges, a response rate of slightly under 43%. This is a relatively high response rate for a survey that was submitted "cold" (i.e., I didn't prepare anyone ahead of time).
The survey contained 86 questions divided into seven sections:
1. The Structural Elements of Briefs
2. Use of Authority...