Writing that Wins: An Empirical Study of Appellate Briefs, 0317 COBJ, Vol. 46 No. 3 Pg. 85
| Author | John Campbell, J. |
Modern Legal Writing
John Campbell, J.
Conventional wisdom about good legal writing abounds. Unfortunately, such wisdom is untested and often contradictory. For instance, when Bryan Garner and former Justice Antonin Scalia co-wrote a book on legal writing, they couldn’t agree on using contractions, gender neutral nouns, or whether citations should be relegated to footnotes, among other things.[1] Similarly, some lawyers suggest that any use of legalese is unwise, while others suggest that writing too simply makes a brief pedestrian And some think appealing to emotion is foolish, while opposing authorities emphasize storytelling as a means of persuasion So, who are we to believe? What styles really dominate the upper echelon of legal writing, and perhaps more important, does writing style really matter at all?
Because writing drives decision making, and as a result is one of the most valuable skills a lawyer can have, I decided to start answering these questions using empirical methods to study writing style. This article summarizes my methods and early findings.
The Study
Two questions guided my study. First, I wondered whether writing style differs by court. If so, my working assumption was that the style used at the U.S. Supreme Court is probably the best, as it reflects the work of some of the most respected and experienced attorneys in the country. Second, I wondered whether there is a measurable relationship between writing style and winning. After all, we all know that cases with some of the most eloquent briefs lose, and at the appellate level in particular, content is king
To investigate these questions, I examined three appellate courts-two final and one intermediate. Briefs are easy to gather for these courts, cases are randomly assigned to panels, and the overall load is small, meaning I could measure a large percentage of the workload. I made a few other decisions to narrow and refine the work, which I offer as caveats here. Specifically, because my expertise lies in the civil realm, I focused on those cases. I deleted cases that had cross-appeals because they don’t always produce a clear winner and loser, and I pulled only appellant opening briefs, scoring a reversal as a win I selected 600 cases (200 from the U.S. Supreme Court, 200 from the Ninth Circuit Court of Appeals, and 200 from the California Supreme Court); obtained the briefs in Word format; cut out everything that wasn’t the meat (style, table of authorities, etc.); and set out to...
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