Appellate advocacy has undergone massive change since the founding of the Supreme Court in 1789. In its early years, the Court only required oral advocates to submit brief statements that merely outlined the points of their case.^[1] As a result, the Justices listened to arguments, asking only a few questions. The Court’s 1818-1835 Marshall era was a friend to oral arguments; there were no time constraints, with some oral arguments lasting hours and others lasting a week. Attorneys “strayed far from the merits of the case” and often incorporated the Bible, Roman law, and Shakespeare in their arguments.^[2] Oral arguments were often a form of entertainment.^[3] Daniel Webster, attorney, Congressman, Senator, and Secretary of State attracted hundreds to his landmark oral arguments: McCulloch v. Maryland, Gibbons v. Ogden, Luther v. Borden, with the McCulloch argument continuing for four days.^[4]

However, in 1829, the Supreme Court initiated its never changing requirement of a written brief. With this change, Justices became more familiar with the matters in front of them, sparking the tradition of questioning during oral arguments. In a drastic change, the Court placed a two-hour speaking constraint per attorney, with a maximum of eight hours per case. 1871 brought about another substantial change when argument time was reduced to two hours per side and questioning became more aggressive. This led to an ever so familiar sentiment amongst advocates: the fear of being interrupted. ^[5]

Oral advocacy remained relatively unchanged until 1918, when oral arguments were reduced to one hour per side, with the feeling of fear persisting amongst advocates.^[6] As their time before the justices got slimmer, many advocates found it difficult to run through their prepared spiels and respond to questions. Some attorneys even tried to ignore questions they were asked!

With the appointment and confirmation of Chief Justice Warren Burger, oral argument time was further reduced to 30 minutes per side. Justices increasingly relied on counsel’s briefs and “bench memos” written by their clerks.^[7] Although the time constraints of oral arguments before the Supreme Court have not been shortened from 30 minutes, COVID-19 has proved additional challenges to oral advocacy. Chief Justice John Roberts brought about a new channel of oral arguments: the telephone. The Chief Justice gives each Justice a turn to ask questions for three minutes without interruption, beginning with Justice Clarence Thomas as the most senior, and ending with Justice Amy Coney Barrett as the most recent appointee.^[8]

While this shift in oral advocacy was very gradual over the course of American history, oral advocacy has seen dramatic changes in more recent years. Until 1968, the United States Court of Appeals for the Third Circuit granted oral argument for every case before it.^[9] Nowadays, oral arguments are an exception. The First Circuit only allows 15 minutes per side.^[10] Other Circuits require the parties to submit a statement to explain their need for oral argument.^[11] Across all Circuits, there has been a 26.2% decrease in cases being orally argued between 1990 and 2015.^[12] In the Second Circuit, 76.4% of cases were orally argued in 1990, compared to 27.8% in 2015.^[13] The Fourth and Fifth Circuits see percentages below 10.^[14] While numbers vary across state courts, oral argument is still no sure thing.

With oral arguments slowly fading away, where does that leave advocates? Oral arguments used to be the gold standard, but now there is an obvious need for a highly persuasive, well-written brief. A case on appeal may be decided solely by the written briefs, without ever giving the judges a chance to ask questions or seek clarification on issues. Whether or not oral argument is granted, the written brief is still necessary, so why not make it as great as can be? Everything that an advocate would orally argue would be included in the written brief anyway.

Legal writing is not meant to be creative, it is meant to persuade. While there is a story-telling aspect to an appellate brief, the ultimate objective of the brief is to apply the law to the facts in a way that makes it so obvious why the judges should rule in your favor. Judge Paul R. Michel of the Court of Appeals for the Federal Circuit states that in about 80 percent of appeals, oral arguments “fail to flip” him, as he likely already had his mind made up after reading briefs.^[15] The written brief may be the only chance an appellate judge has to hear your case. Considering this, it only makes sense that the written brief should be the strongest piece of advocacy.

So, here are some of my tips for writing a strong appellate brief:

1. Be familiar with the court rules. The last thing you want is your appellate brief to be noncompliant with the court rules. Unfortunately, there are no uniform court rules in this context. Each judge, court, jurisdiction, or state might have its own rules for formatting, page limits, font size, etc. Following court rules is one of the most important things to do when writing an appellate brief, considering a court may exercise its discretion to refuse a brief for not complying with its rules. For example, Connecticut Rule of Appellate Procedure § 67-1 allows the court to refuse a brief for not complying with its one page limit for a concise statement of the principal issue.^[16] You may have a stellar brief that could successfully persuade a judge in your favor; however, if they disqualify a brief for not complying with the court rules, it all goes to waste.
2. Develop your case law thoroughly. A strong brief has well-developed case law. Since the whole point of an appellate brief is to persuade judges, the case law in your favor should be synthesized and developed thoroughly to ensure that the judges reading your brief understand why those cases matter. This should be done initially, before getting to your analysis. Maybe the facts of the case you are relying on are directly on point or are substantially distinguishable. But explain those pertinent facts and how the court used them when making their decision. This development early on will be crucial to the rest of your analysis. Since the readers of your brief will already have an idea of where you are headed, it will lead to a greater understanding of your brief as they continue on reading.
3. Ensure the arguments you are making are preserved on appeal. The arguments made on appeal have to be preserved, meaning that the arguments have to be raised at the lower court level. For example, in order to appeal a conviction based on what you believe is inadmissible evidence, you must first have objected to the admission of that evidence at the trial level so that it appears in the record. Or, perhaps you want to appeal based on the trial judge applying the wrong legal standard, such as applying the Lemon test rather than the history and tradition test in an Establishment Clause case. You must argue at the trial level the legal standard you believe applies. Essentially, all arguments on appeal must be contained in the record below. If the appellate court were to review the record (which they do), they should find your arguments at the trial level. If your arguments are not preserved below, this gives your opposing counsel a huge window to have your appeal dismissed, despite the fact you may have a winning case.
4. Proofread. While this tip might be painstakingly obvious, oftentimes people do not proofread their work. I’m guilty of it. We’re all guilty of it. But proofreading actually helps. You can catch spelling errors or grammatical mistakes. You can get a feel for your brief and if it flows. There are many benefits to proofreading, if you actually do it. Although in law school we can’t have a second set of eyes on our papers, if you print out your brief, it has a different feel than staring at it on your computer and might lead to a more productive proofread.

Moral of the story: oral argument in an appeal is not guaranteed. Even if an appeal is granted oral argument, the written brief is the first impression judges will have of your argument. Ensuring that your brief is strongly written will provide the judge with clarity and hopefully persuade them to rule in your favor.

^[1] Clare Cushman, A Pictorial History of Oral Argument, https://supremecourthistory.org/wp-content/uploads/2021/05/SCHS-Feature-Pictorial-History-of-Oral-Arguments.pdf.

^[2] Id.

^[3] Id.

^[4] Seth P. Waxman, In the Shadow of Daniel Webster: Arguing Appeals in the Twenty-First Century, 3 J. App. Prac. & Process 521-531 (2001)

^[5] Augustus H. Garland, Experience in the Supreme Court of the United States with Some Reflection as to that Tribunal (1898) 40-41.

^[6] Cushman, Supra.

^[7] Waxman, Supra

^[8] Cushman, Supra.

^[9] Tessa L. Dysart, et. al., Winning on Appeal: Better Briefs and Oral Argument 11-13 (3d. Ed. 2017).

^[10] 1^st Cir. R. 34.0(c)(1)

^[11] 5^th Cir. R. 28.2.3.

^[12] Dysart, Supra.

^[13] Id.

^[14] Id.

^[15] Paul R. Michel, Effective Appellate Advocacy, 24 Litig. 19, 21 (Summer 1998).

^[16] Conn. App. Rule § 67-1