Academic journal article Justice System Journal

The Value of Precedent: Appellate Briefs and Judicial Opinions in the U.S. Courts of Appeals

Academic journal article Justice System Journal

The Value of Precedent: Appellate Briefs and Judicial Opinions in the U.S. Courts of Appeals

Article excerpt

This study of appellate advocacy examines factors that affect judicial treatment of precedents identified in litigant briefs. Although we find some attorney and party characteristics influence whether a court addresses precedent cited by a party, legal resources are not as influential in the court's adoption of a party's use of a precedent. At times, ideobgical congruence between the circuit panel and the litigant increases the likelihood that the court's opinion will use a precedent in the same way as presented by the litigants. Concerning attorney experience, when their clients ultimately win the case, attorneys with no experience before the circuit are less likely to see the court use litigant-cited precedents in a similar way to the party brief. Even when their clients lose, experienced attorneys are more likely to see the court's opinion address the precedents the attorneys have raised positively. This suggests that attorney experience has some influence in shaping legal policy, regardless of whether the litigant wins or loses.

This study analyzes appellate advocates' role in shaping judicial opinions in the U.S. Courts of Appeals. Drawing from prior research that suggests stronger parties and expert counsel are more likely to prevail in case outcomes before the lower federal appellate courts, we focus on judicial decisions to use precedents raised in the appellate briefs. Our analysis draws on original data to compare legal "inputs" by attorneys with legal "outputs" by judges. By examining precedents used in litigant briefs and the courts' use of or indifference to those precedents, we can further evaluate the role of parties and their attorneys in providing pertinent information and influencing court decisions.

First, we discuss the role that litigants and their counsel have in framing the issues on appeal and the particular importance of appellate briefs in the U.S. Courts of Appeals. Next, we discuss how parties and judges use precedent. Building on these foundations, we then examine variation in judicial treatment of litigant-identified precedents and test our expectations using appellate briefs and majority opinions from the U.S. Court of Appeals for the Seventh Circuit. After evaluating the informational role of appellate advocacy, we assess factors that determine litigant success in persuading courts to use precedents in a manner that is consistent with the position adopted in the appellate brief. Then we explore the potential linkages between winning, losing, and appellate advocacy.

Issue Framing and Arguments in Appellate Briefs

On appeal, attorneys have two possible mechanisms for persuading judges: written briefs and oral arguments before the panel. However, the latter is not granted to every appeal, and even when oral argument is granted, it typically builds on arguments presented in the briefs.1 Consequently, judges largely rely on attorneys' written arguments as a basis for evaluating the dispute before them (Michel, 1998).2 Courts themselves stress the importance of the briefs relative to oral arguments. For example, in an instructional handbook provided to attorneys, the Seventh Circuit emphasizes that briefs are "the first step in persuasion, as well as being by far the more important step" and "should contain all that the judges will want to know, including references to anything other than the briefs that may have to be consulted in the record or in the precedents" (Practitioner's Handbook, 2003:71-75). In this way, each party presents its own picture of the dispute, which it attempts to shape to its best advantage, largely through the use of influential prior cases.3

As specified by the Federal Rules of Appellate Procedure as well as circuit rules, attorneys must follow a highly standardized format for the written briefs that includes detailed instructions on the sequence with which parties must file their briefs, as well as the order of the content within each document. …

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