“Brevity is appreciated.” “A short brief can be very effective.” How many times have you heard appellate judges make statements like this about appellate briefs? While I can most certainly understand an appellate judge’s desire for shorter briefs, a soon-to-be-published article in the Journal of Empirical Legal Studies examines whether more concise briefs are correlated with success on appeal. The full paper is accessible here, but the abstract notes surprisingly that for civil appellants in the Ninth Circuit, “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.”
Of course, “persuasive completeness” does not always equate with long briefs. The study also “found a positive correlation between success [on appeal] and experience for lawyers representing appellees, thus warranting further study of lawyer specialization.”
In an environment where written briefs could be an attorney’s last opportunity to address appellate judges’ questions that at first blush might seem tangential, the importance of “persuasive completeness” cannot be understated.
However, my experience is that “persuasive completeness” is almost impossible to achieve on the first draft or at the last minute. Taking the time to draft a brief, step back from the process, and then revisit that brief a few days later is more likely to produce “concise persuasive completeness.” Moreover, having someone unfamiliar with your appeal review your brief is more likely to result in both persuasive completeness and more concise legal arguments.
I suspect that appellate court judges’ disdain for lengthy briefs stems more from the practice of submitting a brief that could have used a little more editing rather than appellate briefs that, while lengthy, thoroughly address the issues and precedent that the judges will be grappling with when writing their opinions.
I am interested in your thoughts and tips regarding achieving persuasive, but concise, completeness. Feel free to pass them along in the comments below.