Changing Fashions in Advocacy: 100 Years of Brief-Writing Advice

Abstract

This essay looks at examples of brief-writing advice from the early to mid-twentieth century. Although criticism of verbosity and disorganization has been a consistent part of such advice to this day, there are also important changes over time. First, the modern brief is a relatively recent invention, not an ancient legal tradition. Briefs were originally just what the name suggests: short abstracts of the legal argument to be fully developed orally. During the twentieth century the importance of briefs and oral argument reversed - now the brief is the primary means of persuasion while the oral argument presents the abstracted highlights. Second, the debate about the relative importance of reason and emotion, logos and pathos, or law and storytelling, is an old one, and likely to continue. At the beginning of the twentieth century, brief writers were told to avoid emotional or narrative appeals and present only the logical legal argument. But in the wake of legal realism a few decades later, lawyers were told to craft their arguments like artists and novelists. Today, we appear to be in a period where the importance of narrative is enjoying increased recognition once more. The wisest advisors, however, have always urged the use of both logic and narrative in an attempt to persuade.

Keywords: Appellate Briefs, Legal History, Legal Realism, Narrative, Storytelling