Helen A. Anderson, Changing Fashions in Advocacy: 100 Years of Brief-Writing Advice, 11 J. App. Prac. & Process 1 (2010), https://digitalcommons.law.uw.edu/faculty-articles/218
Journal of Appellate Practice and Process
advocacy, court briefs
American appellate practice is accomplished mainly through the written word, and there seems to be a modem consensus about what constitutes a good appellate brief. Books, articles, and continuing legal education materials tell the appellate advocate to be succinct, to organize arguments clearly, and to present facts and law truthfully yet persuasively. The ideal appellate advocate is a careful strategist and accurate researcher who writes crisply and credibly. The power of emotional or narrative arguments has not been stressed although this may be changing-because appellate judges are presumed to be less emotional than juries.
As one who teaches advocacy, and who has practiced in appellate courts, I wondered about the historical roots of the modem consensus of advice. Has the accepted approach to brief writing always been thus? A survey of brief-writing advice from the last century shows that neither ideas about brief writing nor those about the appellate brief itself have been static.
Using books and articles of brief-writing advice, Part II of this essay examines the changing nature of the brief during the early twentieth century and the transition from an abstract or outline to a fully fleshed prose argument. Part III looks at the ways in which the ideal written argument changed from the beginning until the middle of the last century. Brief-writing articles and books show a shift in emphasis from the purely logical argument to one that incorporates storytelling techniques and an artistic approach to the advocate's task. This shift in the advice followed in the wake of the legal realists.
Part III also examines how, as the century went on, the emphasis of the advice givers shifted slightly back to logical argument once again, although they continued to recognize the importance of the facts. Finally, Part IV discusses some of the themes in brief writing advice that persisted even through all these changes.