There is a great deal of folk wisdom regarding how to draft an effective appellate brief. Judges and lawyers offer advice that briefs should be short, should present relatively few issues, should always be followed by a reply brief, and so forth. There is little doubt that aspiring appellate advocates, law professors who teach writing, appellate court clerks, and appellate court judges look to this folk wisdom to learn how to write effective appellate briefs, teach the skill, and evaluate, by proxies, which briefs are likely to be the best.
But this folk wisdom has never been empirically tested. We do so in this article. We examined all cases in the Eighth Circuit Court of Appeals that resulted in an opinion in 2016, coding for many of the variables that the folk wisdom discusses. We also coded for the type of holding and type of opinion that the Eighth Circuit published as our dependent variables.
The result was that much of the folk wisdom, in our dataset at least, was not statistically supported. We did, however, find some statistically significant correlations between our independent and dependent variables. These results will help to inform the attorneys, professors, clerks, and courts that work with appellate briefs every day. It will help these people draft, teach, and evaluate appellate briefs. It will also further the inquiry into effective appellate writing by calling into question the accepted folk wisdom, and thus opening the doors for other avenues of research.
Morrison, Steven R. and Darby, Brian
"Testing — and Mostly Rejecting — the Folk Wisdom of the Effective Appellate Brief,"
Saint Louis University Law Journal: Vol. 63
, Article 6.
Available at: https://scholarship.law.slu.edu/lj/vol63/iss2/6