The Briefs on the Merits - Bna

Ch. 13.12(a) <strong>The</strong> <strong>Briefs</strong> on the Merits 731
several model briefs that have been successful in the recent past to get a
sense of the style and the presentation of arguments. <strong>Briefs</strong> are now available
through Westlaw and LEXIS and on the Internet. 47 Counsel should also make
sure that they are familiar with all of the Court’s rules with respect to the
format and substance of briefs.
Counsel should not attempt to recast the petition for certiorari, with
only minor modifications, as a merits brief. At the petition stage, the focus is
on convincing the Court of the general importance and certworthiness of the
issues presented, while the merits play a secondary role. At the merits stage,
however, the focus of the arguments must shift to a more detailed analysis of
the facts, Supreme Court precedent, statutory and constitutional language,
legislative history, statutory and regulatory policy, and pertinent academic
commentary. A significant amount of additional research is usually required.
A case that reaches the Supreme Court ordinarily has been handled by a
number of different lawyers at different stages of the proceedings. Before drafting
begins, it is helpful to ask co-counsel to circulate ideas for the brief. Depending
on the resources available, an academic consultant versed in the relevant
fields of law might be retained to participate in the briefing and preparation
for argument. <strong>The</strong> drafters of the brief should consider suggestions from these
sources before selecting the strongest points to make in the brief and deciding
how to frame the arguments.
Ideally, the draft of the entire brief will be prepared by one attorney with
substantial experience in appellate practice. Often, however, limits on available
time do not permit such an approach. It is sometimes necessary to split
up the initial drafting of a brief among a number of attorneys. A single attorney,
ordinarily the attorney who will present the oral argument, should then
be responsible for melding the various sections into one stylistically consistent
whole. 48 Once the draft is close to completion, it often is useful to have
it read relatively quickly by an astute lawyer who has not worked on the case,
both to determine whether the points are clear and persuasive and to attempt
to anticipate the impression the brief will make on the Justices and their clerks.
A draft of the brief must be completed well in advance of the due date
so that there is sufficient time for lawyers familiar with the case, as well as the
client, to review the brief and offer comments. A single attorney, however,
should be authorized to make final decisions about what revisions will be made.
<strong>Briefs</strong> written by committee are almost never effective—too many drafters
make for poorly written briefs, and arguments necessarily suffer when they
reflect many people’s additions but no one’s deletions. 49 <strong>The</strong>se problems become
especially acute when, as is now common, a brief is filed by multiple
47<strong>Briefs</strong> filed by the Solicitor General are available at the Office of the Solicitor General’s Web
site, http://www.usdoj.gov/osg. Many Supreme Court briefs are reproduced at http://supreme.findlaw.com/
Supreme_Court/briefs. Selected briefs filed by Supreme Court practitioners at the law firm of Mayer
Brown LLP may be found at http://www.appellate.net.
48Chief Justice Rehnquist criticized the performance of oral advocates who did not play a large
role in drafting the briefs. From Webster to Word-Processing, 1 J. APPELLATE PRAC. & PROC. 1, 4–6 (1999).
49 See C. Lutz, Why Can’t Lawyers Write?, in ABA SECTION OF LITIGATION, THE LITIGATION MANUAL:
SPECIAL PROBLEMS AND APPEALS 200, 202–03 (3d ed. 1999).