As most appellate folks know, the Supreme Court is vetting a proposed rule change to shorten briefs in the U.S. Court of Appeals. I blogged on this, opining that it was not a good idea (Keep it snappy! ). I also blogged on the Maine SJC’s own recent shortening of briefs in its venue. (BIG FONT & fewer words ).
The basis for this shortening movement, aside from a suggestion that when the federal system moved from pages to word count it counted wrong (which doesn’t seem to have support in the record), appears to be an anecdotal impression from judges that briefs are too long. Science, however, now says otherwise.
I am on the board of the American Academy of Appellate Lawyers, which submitted materials against the rule change in the U.S. Court of Appeals. (AAAL filing) Now, professors have shown, through a statistical analysis, that length of a brief does matter – and strongly. (Study)
The professors’ study shows a big correlation between results and the length of an appellant brief (the impact wasn’t there with appellee briefs) – the longer the brief, the more likely the reversal. Because most appellants are plaintiffs (this was a civil case study), this means that plaintiffs may suffer the most from brief-chopping rules.
The study is really interesting, so I encourage all to click on that study link above.
Another point made in the study has to do with the correlation between results and appellate attorney experience. Appellate specialists like myself like to think that it benefits a client to have an appeal done by a specialist (surprise!). Happily, statistics bear this out. Basically, the study reports that you need a lawyer with a certain threshold of appellate experience to avoid a statistically evident bad result. Beyond that threshold, the more appellate experience, the better on the appellee side and in cases that result in precedential rulings.
If we put these two points together, if judges think that there are lots of lousy long briefs being filed (whatever the data says), the answer isn’t to chop brief length for everyone. A short lousy brief is a problem, too. Courts could certify appellate specialists and consider competency standards for admission to appellate practice so all the briefing improves. Courts could also do some vetting of an appeal when filed to decide if it should have a shorter length because it’s simpler, pro se etc.
I understand that all things being equal, shorter is better. I remember when I was on the Board of Bar Examiners, reading 150 answers to an essay question, how much better a short answer containing all the right points than a longer more meandering one. I get it.
But with a complex case with many issues, a good appellate practitioner, writing as concisely as possible, still needs a certain length to explain things, and this study shows that if you try to shortchange that, it may have deleterious effect. Indeed, in the long run it may be easier for the court to have a longer brief that explains things than to try to fill in the blanks itself. This may be particularly true when an opening brief or appellee brief scatter a million arguments, not particularly well fleshed out, requiring some length to provide a response. Nor do I think the answer is to have the parties have to move for dispensation to file a longer brief. It may be what we end up having to do. But that creates more motion practice burdens and costs, and you don’t know the precise length you need until you are nearing done time, with all those timing complications, particularly in the federal appellate system.