I just finished reading a thought-provoking law review article summarizing a multiple regression analysis of a sample set of 200 Ninth Circuit opinions handed down between 2010 and 2013.
No, really, it’s true. The study is Sisk, Gregory C. and Heise, Michael, ‘Too Many Notes’? An Empirical Study of Advocacy in Federal Appeals (February 17, 2015). 12:3 Journal of Empirical Legal Studies (2015, Forthcoming). (H/T Kim Keller.)
Here are some of the authors’ findings:
- For appellants, brief length was highly significant and in a positive direction–that is, longer briefs were positively correlated with a greater likelihood of success on appeal.
- For appellees, lawyer experience was statistically significant, and in the expected direction: more experienced lawyers were more likely to win.
- Oral argument was also highly significant as an independent variable. The authors caution that correlation does not mean causation: “The panel’s decision not to hear oral argument in an appeal does not so much ’cause’ a loss for the appellant as offer an early signal that such a loss is likely impending.” We’ve discussed the importance of oral argument before.
- Procedural issues were correlated with higher reversal rates. This makes sense, the authors point out, as procedural issues often involve questions that can be reviewed de novo.
The study as a whole is pretty cool. It’s worth you time to check it out.
To an extent, the authors’ finding about brief length seems to cut against conventional wisdom; judges in particular are forever advocating for shorter briefs. But Sisk and Heise don’t actually argue that longer is categorically better. Instead, their suggestion is more nuanced:
[T]he right length of a brief should turn on the substance of the individual case and the nature of the winning argument. While brevity has its place and tighter writing remains an essential part of the set of skills for a persuasive writer, the greater priority for the civil appellate brief-writer is persuasive completeness.
It’s tough to argue with a concept like “persuasive completeness.” And to to put things in context, the study’s data set included a group of briefs that were not just concise or pithy, but stupidly short. Like, “Pass the crayons–I need to file something today avoid a bar complaint” short. Nobody should be surprised that the win rate for federal appellate briefs of 0-1,000 words is lower than the win rate for briefs of 10,001-11,000 words.
And don’t let the phrase “regression analysis” throw you off. The paper is anything but bland. Sisk and Heise pepper their analysis with some very enjoyable soundbites from respected lawyers and judges about the proper length of briefs. Suffice it to say that the views of the bench and bar are less than perfectly aligned on this point.
(Somehow, I got through all of that without making a single “size matters” joke. Strong.)
Equally helpful–at least from a marketing perspective–was Sisk and Heise’s conclusion about lawyer experience:
Does greater experience in federal appellate work by a lawyer make that lawyer’s client more likely to prevail on appeal? The short answer from our study of civil appeals appears to be “yes,” at least for one side of the adversarial divide (appellees). Based on this intriguing finding and prior work by other scholars, the evidence grows that attorney experience matters in general and attorney experience in appellate work matters in particular.
I couldn’t have said it better myself. (Actually, I could have–and in fewer words, too. But I’m still putting the blurb up on our website.)
So what do you think–are longer briefs better for appellants? Does it make sense to higher an experienced appellate lawyer, even if you are an appellant?