Briefs A brief is a written statement setting forth the factual background and legal contentions of a party in appellate litigation.
It is chiefly through written briefs that counsel persuade the Supreme Court. Justice Oliver Wendell
Holmes, for example, was influenced rarely by oral argument—usually, instead, by the record and the briefs. That is not surprising, since oral argument is fleeting, whereas briefs are permanent. A brief may be referred to in the seclusion of chambers, before and after argument. Whether in forming a justice's initial impression of the case, or in answering questions about a party's position during the writing of an opinion, the briefs alone speak for the parties.
Not always have advocates briefed the Court. It was not until 1821 that the Supreme Court rules first required all parties to submit written briefs:
After the present term, no cause standing for argument will be heard by the Court, until the parties shall have furnished the Court with a printed brief or abstract of the cause containing the substance of all the material pleadings, facts, and documents, on which the parties rely, and the points of law and fact intended to be presented at the argument. (19 U.S. [6 Wheat.], v, rule XXX, Feb. term 1821) Half a century later, the rule on briefing was amended and expanded (14 Wall. xi), and it has undergone several changes in this century, but the crucial parts remain the same: (1) a succinct statement of the case and of the questions involved; and (2) the argument, specifically citing the authorities relied on (see
Rules of the Court).
Today's Supreme Court rules emphasize that a brief should be what its very name suggests: “A brief must be compact, … concise, and free from burdensome, irrelevant, immaterial, and scandalous matter” (rule 24.6). It was not just an abstract fear of lawyerly verbosity but experience that demanded such a rule. Early in the twentieth century, when there were no page limits on briefs, Justice John H.
Clarke complained of briefs with more than a thousand pages. Under the current rule 24.6, such a brief would be “disregarded and stricken by the Court” (e.g.,
Huffman v. Pursue, 1974).
Experienced advocates today put what they need into fewer than fifty pages. In the mid‐1970s, Chief Justice Warren
Burger suggested a fifty‐page limit, and in 1980 the revised rules established that limit.
Most of the briefs submitted to the Court are not written by advocates experienced in Supreme Court practice, and the justices must contend with the “diffuseness” that Chief Justice Charles Evans
Hughes lamented. In many dozens of cases every year, lawyers reveal in their briefs little awareness of what the Court finds persuasive. In short, the average written argument is inadequate.
Too many advocates approach briefing with the view of setting down the facts and the law on the page. They fail in imagination and tight analytical rigor. As a result, briefs are too often uninteresting as well as unpersuasive. And an inadequate brief hurts a party's chances of prevailing. In a 1942 article in the
ABA Journal on appellate briefing, Justice Wiley B.
Rutledge advised: “[M]ake your briefs clear, concise, honest, balanced, buttressed, convincing and interesting. The last is not the least. A dull brief may be good law. An interesting one will make the judge aware of this” (p. 255).
That an unfocused brief may lose a case, even with good law behind it, may shock some. Given the great burdens on the Court's time, however, an effective brief concisely brings home the nub of why the case ought to occupy the justices' attention.
Although the rules about briefing have become more and more specific with time, the qualities that go into a good brief have remained the same. In the early nineteenth century, Justice Joseph
Story described the “eloquence of the bar”—written as well as oral—as “plain, direct, and authoritative. … It forbids declamation, and efflorescence of style” (
Selections from the Works of Joseph Story, 1839, pp. 186–187, 188).
See also
Opinions, Assignment and Writing of;
Oral Argument.
Bibliography
Bryan A. Garner , The Winning Brief (1999).
Robert L. Stern and and Eugene Gressman , Supreme Court Practice, 6th ed. (1986).
Frederick Bernays Wiener , Briefing and Arguing Federal Appeals, rev. ed. (1967), reissued (2001).
Bryan A. Garner
