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

27 Pages Posted: 15 Feb 2015 Last revised: 10 Nov 2015

See all articles by Gregory C. Sisk

Gregory C. Sisk

University of St. Thomas School of Law (Minnesota)

Michael Heise

Cornell Law School

Multiple version iconThere are 2 versions of this paper

Date Written: March 23, 2015

Abstract

The warp and woof of American law are threaded by the appellate courts, generating precedents on constitutional provisions, statutory texts, and common-law doctrines. While 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 judges that briefs are too long and that prolixity weakens persuasive power. In a study of civil appeals in the United States Court of 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 this claim. We found a positive correlation between success and experience for lawyers representing appellees, thus warranting further study of lawyer specialization.

Keywords: appeals, Court of Appeals, appellate courts, briefs, legal writing, appellate practice, appellate procedure, Federal Rules of Appellate Procedure, lawyer specialization, empirical legal studies

Suggested Citation

Sisk, Gregory C. and Heise, Michael, 'Too Many Notes'? An Empirical Study of Advocacy in Federal Appeals (March 23, 2015). 12:3 Journal of Empirical Legal Studies (2015, Forthcoming); Cornell Legal Studies Research Paper 15-18; U of St. Thomas (Minnesota) Legal Studies Research Paper No. 15-2. Available at SSRN: https://ssrn.com/abstract=2564870

Gregory C. Sisk (Contact Author)

University of St. Thomas School of Law (Minnesota) ( email )

MSL 400, 1000 La Salle Avenue
Minneapolis, MN Minnesota 55403-2005
United States
651-962-4892 (Phone)

Michael Heise

Cornell Law School ( email )

310 Myron Taylor Hall
Ithaca, NY 14853-4901
United States
607-255-0069 (Phone)
607-255-7193 (Fax)

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