Does writing a better brief increase an advocate’s odds of prevailing before the Supreme Court? A new empirical study suggests that the quality of the writing (as opposed to oral argument, the substantce of the arguments, and the overall quality of representation) may not matter as much as some might have thought.
Adam Feldman of EmpiricalSCOTUS and Professor Pamela Corley, a political scientist at SMU, have a new paper in The Journal of Appellate Advocacy and Practice, “Does Quality Matter? The Influence of Party Briefs and Oral Arguments on the U.S. Supreme Court,” looking at whether the quality of brief writing, as measured by BriefCatch, appears to affect the likelihood a party prevailed before the Supreme Court. The study builds on prior research showing some correlation between party success and how Justice Blackmun rated the quality of the oral argument. (Justice Blackmun kept copious notes about such things.)
Here, from the study, is a summary of their conclusions:
This article applies tools from a piece of software called BriefCatch to provide writing quality scores to the same set of cases analyzed in Johnson et al.’s 2006 article. In doing so we examine the comparative role of briefs and oral argument quality in Supreme Court decision making. While BriefCatch grades are not a perfect companion to Justice Blackmun’s grades for oral arguments, especially because they are calculated exogenously from the justices, as opposed to Blackmun’s grades, it provides us a measure for brief quality and in doing so allows us to extend the study of the mechanisms affecting Supreme Court decision making beyond what was previously possible. In addition to measuring the writing quality of briefs, we also include another measure of brief quality—the number of Supreme Court precedents cited—in order to capture the legal authority relied on in the brief.
We find that, after controlling for elite attorneys and the quality of oral argument, a higher BriefCatch grade is not associated with the final vote on the merits; however, there is an association between how well-grounded the brief is in precedent and the final vote on the merits. Furthermore, our study provides continued support for Johnson et al.’s finding that the probability of a justice voting for a litigant increases dramatically if that litigant’s lawyer presents better oral arguments than does the competing counsel, a result that holds even after controlling for the quality of the brief. These results are important for three reasons. First, given that the workings of the Court are often shrouded in mystery and the Court was designed as the primary body of the federal government with responsibility to interpret the Constitution, it is important to understand the different components of its decision-making process. Second, the findings inform our understanding of judicial behavior by helping us better gauge the importance of briefs and oral arguments in the decision-making process. The fact that judicial decisions are associated with quality lawyering before the Court suggests the value of looking beyond ideology and strategy to explain Supreme Court decision-making. By showing an association between winning and quality lawyering, we offer practical guidance to practitioners. Our findings suggest important implications for the role of persuasion in politics more generally. For example, recent research suggests that political persuasion in social media is most likely to occur when people are presented with well-reasoned arguments. Thus, it is important to understand whether quality argumentation matters, both orally and in writing.
The study’s method necessarily has some limitations, but it is quite interesting nonetheless.