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The Champion

April 2019 , Page 57 

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Appellate Advocacy: Testing — and Mostly Rejecting — the Folk Wisdom of the Effective Appellate Brief

By Steven R. Morrison

There is a great deal of folk wisdom about the characteristics of a successful appellate brief. For example, it is said that shorter briefs and fewer issues lead to greater appellate success. Bryan Garner, one of the “gurus” of legal writing who often partnered with Justice Scalia on the issue, has recommended that issue statements not exceed 75 words. Given his recommendation to include a major premise, minor premise, and conclusion, it would appear that his ideal issue statement isn’t fewer than, say, 25 words. Some claim that simple, short arguments are more effective than longer ones. Many attorneys wonder whether participating in oral argument and submitting reply briefs have any effect on appeal success. Until now, this folk wisdom has remained empirically untested. I, along with my co-author Brian Darby,1 performed such a test. The results2 call into question most of the folk wisdom.

We started with the current empirical literature on appellate advocacy, which includes studies on

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