Review of “Changing Fashions in Advocacy: 100 Years of Brief-Writing Advice”

Please note that this post is from 2010. Evaluate with care and in light of later events.

Helen A. Anderson of the University of Washington School of Law brings us “Changing Fashions in Advocacy: 100 Years of Brief-Writing Advice.” (The Journal of Appellate Practice and Process, Vol. 11, No. 1, Spring 2010.)

Her historical essay looks at the twentieth century’s development of the modern legal brief, something she describes as “a relatively recent invention, not an ancient legal tradition.” The brief, she says, once was exactly the opposite in importance to what it is today. It has become the main form of appellate persuasion, with oral arguments focusing only on the highlights. Storytelling was once frowned upon in legal briefs, and “writers were told to avoid emotional or narrative appeals and present only the logical legal argument.” Later in the century, lawyers instead began to “craft their arguments like artists and novelists.”

She touches on the issue of new technologies impacting the practice of law, noting that “[o]ne judge complained in 1908 that lawyers no longer took the time to carefully craft briefs with quill and ink, but instead dictated pages of rubbish to stenographers” (from Alfred C. Coxe‘s 1908 article “Is Brief Making a Lost Art?”). Coxe goes on to write:

The age of combinations, bureaucracies, telephones, and stenographers is at hand, but is still in its infancy. Some of us may yet live to behold a machine where the pleadings and proofs are inserted in a condensing hopper, passed through a solution of text-books and syllabi and from there to a drying chamber, to be deposited finally in a receiver attached to the clerk’s desk, in the form of a completed brief. It is to-day as difficult to find a hand-made brief as it is to find a hand-made shoe.

Interestingly, she compares the early twentieth-century perception of the judicial process “as one of scientific inquiry, and the lawyer’s role as an assistant in that project.” She quotes Ralph Ringwalt, who wrote in 1923 that the “proper personal attitude of legal reasoning on appeal is analogous to what is known as the scientific spirit in inquiry.”

During the middle of the century, lawyers began to recognize the power of storytelling, and to see the process of brief-writing as more than a scientific endeavor. Today’s brief-writers are more inclined to see briefs as a combination of technical legal argument and compelling storytelling.

Anderson’s article is both interesting and compelling, and provides much needed historical context to the practice of law that is often under-recognized within the practicing legal community. History is critical to the common law, but is less often practiced in relation to attorneys themselves.

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• Why practicing lawyers ought to hate legal academics (professorbainbridge.com)