Writing that Wins: An Empirical Study of Appellate Briefs

Abstract

Conventional wisdom about 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. 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, whom are we to believe? What styles really dominate the upper echelon of legal writing, and perhaps more importantly, 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.