How to Write for the Supreme Court
Use active verbs. Keep your sentences short. Don't dwell too long on case history. Win in the Supreme Court. At least, that's the pattern identified by University of Southern California Ph.D. candidate Adam Feldman, who analyzed the writing style of Supreme Court briefs to see who had their brief language picked up by the Justices themselves.
That analysis, which looked at 9,400 briefs filed between 1946 and 2013, found a distinctive writing style associated with success in the Supreme Court. Not only does that writing help win cases, it finds its way into the High Court's opinions as well. Yep -- it's not just the law clerks who write the Justices' opinions. The most successful Supreme Court lawyers get their language in there as well.
Tips for Your Next SCOTUS Brief
Feldman's study looked at "the amount of language in Supreme Court opinions shared with merits briefs" based on lawyers' experience practicing in the Court over almost 70 years. Feldman found that lawyers with the most experience before the Justices were much more likely to have language from their briefs work its way into Supreme Court opinions. That's not terribly surprising, given that a small cadre of 66 lawyers dominate the Supreme Court bar.
Feldman identified a few of the writing characteristics of those successful lawyers for Bloomberg's Big Law Business. Short sentences and active verbs are key, he said. Lawyers should "avoid dry regurgitation of the lower court's opinions." Keeping things brief probably wouldn't hurt either, as most of the briefs that work their way into SCOTUS opinions are relatively short. The average brief for lawyers who've argued before the Supreme Court more than five times is 200 words less than the briefs of less experienced counsel.
Some of the language from those briefs makes it into the Supreme Court opinions verbatim, Feldman found, in cases such as Lawson v. FMR, which borrowed three full sentences from the party's briefs along with several other similar, but not identical, phrases.
It also helps if your case isn't that important. Feldman found that "as cases are perceived as more important to the Court, the Court is likely to share less opinion language with the briefs."
Who Writes the Supreme Court Briefs?
So, what lawyers had the most success when it came to SCOTUS picking up their writing? Chief Justice John Roberts lead the pack with the highest amount of his brief language adopted by the Court. Prior to becoming a judge, the Chief Justice worked for the U.S. Attorney's office as associate counsel for President Reagan, as Solicitor General, and in private practice for Hogan & Harston. Justice Roberts had the perfect combo of factors which Feldman found impacted success -- he was a former SCOTUS clerk, government lawyer, and had practiced before the Court many times.
Feldman's study identified the top ten overlap scores for non-Solicitor General attorneys who regularly appeared before the Supreme Court. These were:
These weren't the only successful Supreme Court practicioners, however. For example, Harry I. Rand had the highest overlap value, but did not commonly practice before the Court, as his practice was focused on international art recovery. Individual lawyers' success also didn't translate over to their firms. Justice Roberts' Hogan & Harston was only the fifth most successful firm before the Court, Feldman found. (O'Melveny & Myers was number one.)
- The Supreme Writer on the Court: The Case for Roberts (The Volokh Conspiracy)
- Kagan's Conversational Tone Gets the Public Involved in Opinions (FindLaw's U.S. Supreme Court Blog)
- Nine Plus: Supreme Court Clerks by the Numbers (FindLaw's U.S. Supreme Court Blog)
- Amicus Brief Numbers: Quantity, Quality, and Influence (FindLaw's U.S. Supreme Court Blog)
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