Why do they call it a “brief?”
Posted on January 1, 2012
In this blog I will be Briefly Writing about brief writing. However, I do not believe brief writing itself can be done briefly. When I spend two or three weeks writing a 70 page brief to the Alabama Supreme Court, or a 14,000 word brief to the Eleventh Circuit Court of Appeals, my wife tells me that the calling the document a brief is a misnomer, or that a legal brief is an oxymoron. Perhaps so, but there is a good reason for the length of an appeal brief.
While a trial court judge is a part of a case, along with the lawyers and the parties, and experiences the litigation over many months or even several years before a ruling or judgment is appealed, that is not true of the appellate court judges. They are strangers to the parties and the proceedings below, and the amount of time spent in review of the lower court’s rulings is measured in hours and not days. Thus, the brief must provide all the information necessary for the appellate judges to develop an understanding of the factual and legal context of the case in the short time the brief is studied. While appellate judges may speak at continuing legal education conferences and beg the lawyers assembled to not use every page allotted by the appellate rules and suggest that shorter briefs involving fewer issues are more likely to achieve success, my response is that the appellate judges are not representing a client and a lawyer’s duty to is prepare the best brief possible within the rules.
Having experienced the internal mechanisms of a state supreme court for five years as a staff attorney to a succession of justices, I know first-hand that a well-written, descriptive and compelling brief, even if quite lengthy, is more likely to achieve success for a client than one written sparsely and not fully fleshed out, even if the that party has the more favorable case law. I contend that it is not the number of issues raised in a brief or the number of pages of text that appellate judges are complaining about, it’s simply that most appellate briefs are poorly written and that reading them is a chore. When I say briefs are poorly written, I don’t mean they aren’t adequate examples of legal writing. What I mean is that they aren’t interesting to read, even to appellate judges and legal staff that have chosen the law as a profession. In a recent interview, Chief Justice Roberts of the United States Supreme Court advised lawyers about what he believes makes a successful appellate brief:
[Y]ou’ve got to tell a good story … you want it to be a little page-turner, to have some sense of drama, some building of the legal argument.
Yes, an appellate brief needs to tell a story in which your client is the main character in an important conflict, and is the one the readers (judges and a staff) want to win in the end. The topic of storytelling in brief writing is the topic I plan to address in future postings on this blog.