For appellate lawyers looking for a diversion from the COVID-19 emergency, here is an article that bucks some of the conventional wisdom on appellate practice: Inputs and Outputs on Appeal: An Empirical Study of Briefs, Big Law, and Case Complexity, by professors Adam M. Samaha, Michael Heise, and Gregory C. Sisk. The article reports the results of a study of briefs and opinions in civil cases in in the federal Second, Eighth, and Ninth Circuits. About two-thirds of the article describes the authors’ methodology, which will be more understandable to statisticians than to lawyers. The article is just a draft; it will undergo some vetting before being published. With that caveat, two of the authors’ conclusions jumped out as contrary to conventional wisdom.
First, in briefing, shorter is not necessarily better. To the contrary: the longer the brief, the greater the chances of reverse. The authors caution that this finding does not mean that prolixity is persuasive. “It remains possible,” they caution, “that the appellant brief length is simply a better proxy for the unobserved vulnerability of trial-level decisions than are our measures of complexity and our controls.... So we are not in a position to recommend that lawyers start writing longer briefs with no other measure of exposition quality. At the same time, we have no evidence that shorter briefs are more effective.” My suggestion: make your brief as long as it has to be: no longer, no shorter.
Second, a cross-appeal (or in Louisiana, an answer to the appeal) is not a good strategy for an appellee to obtain an affirmance. To the contrary, the presence of a cross-appeal correlates positively with reversal, but not necessarily in the cross-appellant’s favor. This, in itself, shouldn’t be surprising. As the authors point out, “Once a cross-appeal is lodged, both sides are attacking the trial court in some respect.” They also caution that, in itself, the cross-appeal may not be the cause of reversal; it may be that attorneys file cross-appeals in cases where the risk of reversal is already high. My suggestion: don’t take a cross-appeal or answer the appeal with the idea that you’ll increase the chance of affirmance by compromise decision. The data suggests that, faced with cross-appeals, appellate judges do not compromise by simply affirming; instead they’re more likely to reverse—and the direction of the reversal may not be in the cross-appellant's favor.