A few months back, Judge Richard Posner and Professor Albert Yoon posted their draft of What Judges Think of the Quality of Legal Representation, their forthcoming paper in the Stanford Law Review.
Legal scholarship is prone towards omphaloskepsis and metadiscourse, so it’s refreshing to see a paper coming out based on real, honest-to-goodness empirical data: Posner and Yoon’s survey of 666 federal and state judges, including both appellate and trial judges.
There’s a lot to unpack from the study, so I’m going to do it in several posts.
Before we get to the data, there are two long-standing preconceived notions about the nature of the work that federal appellate judges, federal trial judges, state appellate judges, and state trial judges do.
First, federal law is often considered to be more complicated than state law. The notion isn’t that state law is easier to decide than federal law, just that state law cases don’t involve as many legal issues as federal law cases. My speculation is that this perception is partly because the bulk of state cases are predicated upon common law causes of action (negligence, breach of contract, fraud, etc.) while the bulk of non-diversity federal cases are predicated upon statutes (employment discrimination, patent infringement, antitrust, etc.). There are of course many exceptions to these generalizations — there is, for example, a ton of state-court litigation on the meaning of uninsured motorist statutes — but, in general, if you pluck a random case from state court, you will likely get a common law cause of action; in contrast, if you pluck a random a non-diversity case from federal court, you will likely get a statutory cause of action where the primary dispute is more legal in nature.
Second, appellate work is often thought to be more dependent upon analytical reflection over the meaning of the law while trial work is thought to be more dependent upon tactical planning and execution of persuasive techniques. There are, of course, exceptions to that as well: there are few situations in the law that require the rapid tactical decision-making planning of an oral argument in appellate court, and trial courts routinely issue extraordinarily thoughtful and careful opinions in complex litigation that span hundreds of pages and dozens of complicated legal issues. Nonetheless, if you take a random peek at a case on appeal, you will likely find the judges in a nuanced debate over the analysis of a single legal (i.e., more legal than factual) issue, whereas if you take a random peek at a trial court, you will likely find them in the midst of battle calling strikes and balls as fast as they come by.
With that framework in mind — federal law more complicated than state law, appellate advocacy more dependent on nuanced analysis and trial advocacy more dependent on persuasion — the views of the judges about the importance of briefs versus oral argument isn’t surprising:
As Posner and Yoon describe it,
With respect to the relative importance that judges attach to oral and written argument (Table 3; Question 3), it is perhaps unsurprising that appellate judges—both federal and state—deem written argument the more important of the two, since appellate courts generally allot very little time to oral argument per case, compared to the time taken in reading briefs. Interestingly, at the trial level, state judges place significantly less weight on written advocacy than federal judges do, probably because of heavy caseloads that deter judges from inviting lengthy written submissions. Overall, the judges’ relative emphasis on written argument contrasts with surveys of practicing lawyers, who perceive legal writing to be of minor importance. One possible explanation is that for many attorneys, particularly those in transactional practice, legal writing comprises only a small part of their typical responsibilities. While the judges surveyed downplay the importance of oral argument, some jurists, notably Justice Scalia, argue that it serves a valuable purpose.
There is, though, a cause and effect issue here. Although, in an ideal world, every lawyer would give their best in every brief they filed, I don’t think anyone can deny that a substantial number of practitioners adhere to a hierarchy in the amount of effort they put into their briefs: attorneys put far more effort into appellate briefs than they do into trial briefs and more effort into federal briefs than state briefs. I’ve never seen a federal appellate brief that wasn’t put together like a Ferrari 458 Italia, while I routinely see state court trial briefs that barely convey the lawyer’s reason for filing it.
Is it because attorneys know that appellate courts will only give them a very limited amount of time to make any oral argument about the entire case, whereas, with trial judges, lawyers generally argue only one issue of time, and the trial judge listens until they’re ready to make a decision? Could it also be because attorneys believe that federal courts are more likely to enter dispositive orders than state courts and so think the stakes are higher?
I can’t say. Those are some of my suppositions. I hope that Posner and Yoon will consider putting together some studies of practicing attorneys about that.
Whatever the causes of these perceptions by judges, it’s useful for attorneys to understand what the judges will actually be looking at. On appeal, consider the brief your last stand. For an oral argument before a trial court, be ready to offer more than just a regurgitation of the brief itself. Those conclusions aren’t exactly brain surgery, but it’s good to get empirical confirmation of many attorneys’ intuition.
Which brings us to the next issue, judges’ perceptions about the importance of experience as compared to intellectual ability:
As Posner and Yoon describe it:
Question 11 (Table 9), which repeats Question 7 but in the context of civil cases, reveals that federal appellate judges again placed the greatest emphasis on intellectual ability, while all other judge groups chose experience. Each judge group, however, placed greater emphasis on intellectual ability, and less on experience, in civil cases than in criminal cases. For federal district and state appellate judges, the difference in ranking between intellectual ability and experience was small and not statistically significant. State trial judges’ emphasis on experience, however, was statistically significant.
There’s likely a cause-and-effect issue here, too: appeals are structured in a way (e.g., through strict issue and page limitations) that forces the party to focus on a detailed analysis of a handful of issues, while trials are a free-for-all where hundreds of issues are considered and ruled upon rapidly. Whatever the causes, the above findings again comport with our preconceived notions. It doesn’t take too many years of practice to learn how to write a brief in a clear, coherent and persuasive style; the real work of legal analysis comes in the painstaking research and the contemplation of the issues. If appellate work is in general more analytical and more dependent upon nuance in the argument, then the experience of the lawyer takes a backseat to their analytical abilities, because appellate judges are more likely to be persuaded by good ideas than by polish or persuasive techniques. Conversely, although one can prepare for trial, many of the decisions at trial will have to be made in the heat of battle, making the lawyer’s analytical abilities are less important than their ability to prepare appropriately and to exercise good judgment under pressure.
Again, the above data confirms our intuition. On appeal, the substance of a brief trumps the name on it. For trial, although there are some ways to improve one’s preparedness for trial, there’s no substitute for learning tactical decision-making the old-fashioned way: by doing it.
We’ll return to this study in future posts.