Does appellate folk wisdom hold up?

Today's DJ offers Steven Morrison's Effective appellate briefs: the folk wisdom and the reality

How accurate is anecdotal wisdom about appellate briefs? I and a colleague tested it empirically and quantitatively. We found that most, but not all, of this wisdom is unfounded. (See the full article and data here.)

The folk wisdom is that "the best appellate advocacy entails a short principle brief that has few cited sources and no more than three issues, each of which is stated in less than 75 words, a reply brief, and oral argument." But Morrison "and a colleague tested it empirically and quantitatively. We found that most, but not all, of this wisdom is unfounded."

• participating in oral argument was positively associated with increased odds of an appellant having both a better holding and a better outcomerank. When participation in oral argument is coupled with filing a reply brief, the likelihood of having a better outcomerank is even higher.
• It appears counterintuitive, then, that participation in oral argument actually leads to decreased odds of having a stronger opinion. But this makes some sense, since oral arguments and reply briefs may be filed in close cases and may give judges pause, both of which can lead to some doubt that is expressed in weaker opinions.
• citing an increasing number of sources up to 50 was positively associated with increased odds of having a better holding, and citing more sources up to 43 was positively associated with increased odds of having a better outcomerank (and was made even more likely when coupled with participation in oral argument). Citing more sources beyond these numbers actually reduced the odds of a positive result.
• the probability of having a strong opinion is always high, but is lowest when the number of pages in the argument section approaches 16.7.
• We did not find that the number of issues, the number of words per issue, or the overall length of the brief were statistically significant when it came to outcome success as to either holding, opinion or outcomerank.

"The picture of the effective appellate brief, then, changes a bit from the picture painted by the anecdotal wisdom. According to our study, appellate attorneys should feel free to argue as few or as many issues as they like. They should not feel bound by Garner's 75-word admonition for issue statements. And they should not seek to write a shorter brief just because they heard that shorter briefs are better briefs. Attorneys should, however, follow the anecdotal wisdom to both file reply briefs and seek to participate in oral argument."

"Good cases, litigated intelligently and completely, will find their way to victory, but excellent brief writing alone cannot save a bad case."