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

• Author: Michael Heise,Gregory C. Sisk
• Published date: 01 September 2015
• DOI: http://doi.org/10.1111/jels.12081
• Date: 01 September 2015

“Too Many Notes”?

†

An Empirical Study of

Advocacy in Federal Appeals

Gregory C. Sisk and Michael Heise*

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 judgesthat briefs are too long and that prolixity weakens persuasive power. In a

study of civil appeals in the U.S. Courtof 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 thisclaim. We found a positive correlationbetween success and experience

for lawyers representing appellees,thus warranting further studyof lawyer specialization.

I. Introduction

The warp and woof of U.S. law are threaded by the appellate courts, generating prece-

dents on constitutional provisions, statutory texts, and common-law doctrines. The chan-

neling of the course of the law through the appellate courts is directed by appellate

lawyers who advocate cases primarily through the vehicle of written briefs. While the

product of appellate courts is regularly the subject of empirical study—exploring such

†

See Amadeus (Orion Pictures Corp. 1984). On the apocryphal “too many notes” exchange between Emperor

Joseph and Mozart on the premiere of the composer’s new opera, see the conclusion of this article.

*Address correspondence to Gregory C. Sisk, Laghi Distinguished Chair in Law, University of St. Thomas

School of Law (Minnesota); email: gcsick@stthomas.edu. Heise is Professor of Law, Cornell Law School;

email: michael.heise@cornell.edu.

The authors wish to thank Valerie Aggerbeck of the University of St. Thomas Law Library for her unflagging

work in finding necessary data, including numerous calls to the clerk’s office for information on briefs in Social

Security cases, where the records are sealed; University of St. Thomas law student Colin Seaborg for research

assistance; and St. Thomas law students Rachel Davis, Caitlin Drogemuller, Nicholas Lebbin, Chloe O’Neill, Tony

Schmit, and Heidi Van De Berg for work in coding sampled decisions.

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Journal of Empirical Legal Studies

Volume 12, Issue 3, 578–600, September 2015

influences as judicial background and ideology, the nature of the parties, and such legal

factors such as standard of review and precedential regimes on substantive outcomes—

less attention has been given to the sources and methods of appellate advocacy.

1

Given the central role of appellate courts in the U.S. legal system and the para-

mount place of written briefs in the appellate process,

2

we should examine seriously the

frequent complaint by appellate judges that appellate briefs are too long. Judges warn

appellate litigators that they approach the maximum length allowed by the rules at the

peril of undermining persuasive force. Former Chief Judge Alex Kozinski of the U.S.

Court of Appeals for the Ninth Circuit warns lawyers that an over-long brief

“telegraph[s] that you haven’t got much of a case.”

3

Former Chief Judge Patricia Wald

of the District of Columbia Circuit advises “the shorter and punchier the brief the

better.”

4

But, in some contrast, leading appellate lawyers Andrew Frey and Roy Englert

suggest that “‘write short’ is not a panacea,” as “[r]elatively extended treatment may be

necessary because the case involves an especially complex issue or because a number of

issues must be presented.”

5

Striking the balance on the appropriate length of appellate briefs for successful

appellate advocacy and effective judicial decision making is of both general interest for

better understanding the appellate process and of immediate consequence given a cur-

rent proposal to reduce the permissible length of briefs in federal appeals. In late 2014,

the Advisory Committee on Appellate Rules of the U.S. Judicial Conference circulated

for public comment a proposal to reduce the number of words allowed for principal

appellate briefs from 14,000 to 12,500.

6

1

Some of the most interesting and important empirical work on the persons, methods, and forms of appellate

advocacy---the “inputs”---in the federal courts of appeals is being conducted by a group of five political science

scholars, Professors Susan Haire, Laura Moyer, Todd Collins, Stefanie Lindquist, and Roger Hartley. See, e.g.,

Laura P. Moyer, Todd A. Collins & Susan B. Haire, The Value of Precedent: Appellate Briefs and Judicial Opin-

ions in the U.S. Courts of Appeals, 34 Just. Sys. J. 62 (2013); Susan B. Haire & Laura P. Moyer, Advocacy

Through Briefs in the U.S. Courts of Appeals, 32 So. Ill. U. L.J. 593 (2008); Susan Brodie Haire, Stefanie A. Lind-

quist & Roger Hartley, Attorney Expertise, Litigant Success, and Judicial Decisionmaking in the U.S. Courts of

Appeals, 33 Law & Soc’y Rev. 667, 684 (2006). We have benefitted greatly from their work and cite to it regularly

in this article.

2

See Ruggero J. Aldisert, The Appellate Bar: Professional Responsibility and Processional Competence---A View

from the Jaundiced Eye of One Appellate Judge, 11 Cap. U.L. Rev. 445, 456 (1982) (“Ninety-five percent of

appellate cases are won or lost on the basis of written briefs.”); Moyer, Collins & Haire, supra note 1, at 63

(“[J]udges largely rely on attorneys’ written arguments as a basis for evaluating the dispute before them.”).

3

Alex Kozinski, The Wrong Stuff, 1992 B.Y.U. L. Rev. 325, 326.

4

Patricia M. Wald, 19 Tips from 19 Years on the Appellate Bench, 1 J. App. Prac. & Process 7, 10 (1999).

5

Andrew L. Frey & Roy T. Englert, Jr., How to Write a Good Appellate Brief, 20(2) Litigation 6, 8 (1994).

6

Committee on Rules of Practice and Procedure, Judicial Conference of the United States, Preliminary Draft of

Proposed Amendments to the Federal Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure at 49 (Aug.

2014, available at <http://www.uscourts.gov/uscourts/rules/preliminary-draft-proposed-amendments.pdf>) (pro-

posed amendment to Fed. R. App. P. 32). On the proposed rule change, see generally Part III.A.4 of this article.

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