By Ben Adlin, Guest Journalist Blogger
Associate Editor, Los Angeles Daily Journal
Last year, U.S. Supreme Court Justice Antonin Scalia proclaimed that "People who get used to blurbing things on the Internet are never going to be good writers." Yet here am I, a paid writer if not necessarily a good one, blurbing on the Internet about the history of American appellate advocacy. Humor me.
One can hardly fault Scalia for his focus on the written word. His own legal organ operates almost entirely through briefs and opinions, as do virtually all appellate courts in the land. In that world, writing counts. Most seasoned appellate practitioners will tell you that if an attorney today hasn't persuaded the judges through writing by the time she steps up to the lectern, oral argument is largely window dressing.
Amid the turning gears of the appellate engine, oral argument is a "minor, almost formulaic part," said Loyola Law School professor Allan Ides, a former Supreme Court clerk. "I can tell you, at the Supreme Court level, very, very rarely are oral arguments going to make a difference," he said. "You don't even in most cases get to make an oral argument. You just get grilled."
It wasn't always this way. Appellate argument in the republic sprang from the British oral tradition. Rather than paper a court with briefs, attorneys in the Supreme Court's early years would sometimes spend days engaged in rhetorical sparring. This was back when snuff boxes decorated the counsel tables. Those "vanished long ago," the court historical society's website says, "along with arguments that lasted for hours and soared to splendid heights of oratory."
Relatively speaking, lawyers today give argument at a sprint - counsel at the Supreme Court typically have only 30 minutes, and even then justices so pepper them with questions that they, in the words of Justice Elena Kagan, "don't get a chance to talk in paragraphs."
No, most of the Supreme Court bar's soaring now comes in the form of written briefs, with arguments laid out in those characteristically narrow, painstakingly formatted columns of prose. (Rule 33 of the Supreme Court specifies briefs be set in the Century family of typefaces, in case you were wondering.) But in the court's early years, written briefs were little more than an afterthought. Before 1821, hardly any writing was required of a barrister at the high court beyond a short "statement of material points."
"To the extent there are lawyers that hate writing, I think they'd say, 'Gee, that's a great system,'" said Suzanne Ehrenberg, a former staff attorney at the 7th Circuit Court of Appeals.
Even after the 1821 requirement, more than three decades after the court first assembled, filings were generally limited to a list of facts and points of law with no explicit argument. But the pendulum had begun to swing the other direction. In 1833, the court first gave parties the option to waive oral argument and present their cases entirely in writing. Though few litigants ultimately chose that option, it signaled a radical departure from past practice.
Ehrenberg, a professor of legal writing at the Illinois Institute of Technology Chicago-Kent College of Law who studied the shift, said it was the country's youth that gave its highest judicial body the opportunity and incentive to break from tradition. "To the extent they allowed written argument, it became clear that there were a lot of virtues to that approach."
Important for a nation quickly expanding across a continent, written arguments were permanent and portable. "Written briefs can be read, they can be put down, they can be re-read, they can be taken home at night. They don't disappear as the spoken word does," said David Axelrad, an appellate specialist at Horvitz & Levy in Los Angeles who teaches at Loyola about the Supreme Court in historical context at Loyola.
Briefs also provide an opportunity for lawyers to spitball with colleagues, to hone their reasoning and tune their language.
"I can get it to the point where I'm saying it as precisely as I can. I'm not getting interrupted by questions. I can link various arguments," said Loyola Professor Daniel P. Selmi, who has briefed and argued dozens of appeals in state and federal courts.
"How does a good appellate advocate write briefs? The answer is they write a draft and they work it over and over until it gets to the point where they're happy with it. The end product is a very clear exposition of what your arguments are," he said. "That just has to be a more efficient way to convey information to a court."
Such polished briefs also give judges a chance to prepare. And do they ever. The Supreme Court today has what's known as a hot bench - justices are highly vocal, and attorneys during oral argument often struggle to get a word in edgewise. Couldn't there be an advantage to asking judges to consider cases with virgin ears?
"Absolutely!" said Ehrenberg. Back before briefs were commonplace, many from the oral tradition liked the idea of judges hearing cases afresh. "That was considered a virtue. They were a tabula rasa. They had not thought about the case before. They had no preconceptions. Everything was taking place in court, in plain view of the litigants."
But did all that rhetorical flourish, the syrupy oratory of lawyers such as Daniel Webster, change the essential nature of the appellate process? Was the Supreme Court of old more susceptible, say, to appeals to emotion than the court is today? Did the impassioned oral arguments washing over the court cause it to veer manically toward whatever argument literally sounded the best?
In short, probably not. While Ides, the former Supreme Court clerk, called the shift a "sea change in the way legal business was conducted," he and others doubted that it made a significant impact in how judges interpreted the law. Words are words are words, the basic argument goes, and the ultimate difference between written and spoken arguments is negligible. Besides, other variables - justices' personal views, their political affiliations, even the rumbling of their tummies - so confound the process that it's nearly impossible to tease out how much an argument's medium matters.
Axelrad acknowledged, however, that the shift toward writing "depersonalized" the appellate environment. And that change might subtly color how judges hear a case.
"Increasingly the courts are buffered. Their understanding of the case is filtered through the cold print of the brief as well as the cold print of the record," Axelrad said. "There's no opportunity for a lawyer to say, you know, 'Your honor, this is a really important case. ... It may not come through in the written word of the brief, but we've got aggrieved people here.'"
Whether such abstraction is a good thing is hard to know. But one would imagine Scalia, always the textualist, would be a fan of the result. As he might phrase it: better writing, less argle-bargle.
Ben Adlin is an associate editor at the Los Angeles Daily Journal, where he has covered federal courts and other subjects. He was a fellow in public affairs at the Coro Center for Civic Leadership.