SUPREME COURT JUSTICE Roberts on Brief-Writing: ‘Be Concise’
Tony Mauro, Supreme Court Brief |
A warning to lawyers who are drafting U.S. Supreme Court briefs this fall: Chief Justice John Roberts Jr. would like you to take a red pencil and lop off 15 pages of verbiage.
Roberts did not say this in so many words, but in a question-and-answer session in Nebraska September 19, the chief justice made it abundantly clear that as he enters his tenth year on the court, he is fed up with lengthy briefs. (His comments begin at the 20-minute mark.)
Chief Judge William Riley of the U.S. Court of Appeals for the Eighth Circuit led the conversation at the University of Nebraska College of Law, before a mix of 500 students, lawyers and judges.
When Riley asked the chief justice for tips on writing persuasive briefs, Roberts answered without hesitation: “I know that every judge in this room will agree with me: Be brief! Be concise.”
For most Supreme Court briefs, Roberts said, lawyers are limited to roughly 50 pages. The court’s rules put the limit in terms of words, not pages—15,000 words to be exact—but that works out to between 50 and 55 pages. As a result, Roberts said with a long-suffering tone, “every brief you pick up is 50 pages—every one of them, the next one, and the next one, and the next one.”
But then, he said, “all of a sudden, you pick up a brief that’s 35 pages long. The first thing you do is look at the cover, because you like that lawyer.”
Roberts continued, “The second thing you think is, ‘He may have a good case, if it only takes 35 pages for him to lay out what the argument is.’ And you’re going to read that brief a lot more carefully, frankly, than you do with the one that’s 50 pages where you feel they are filling the brief.”
Once an appellate brief writer himself, Roberts has argued for brevity before. In 2007, he told legal writing expert Bryan Garner drily, “I have yet to put down a brief and say, ‘I wish that had been longer.’”
But his Nebraska comments about brief-writing were more pointed and impassioned than before. And his complaints were not limited to length. Briefs should be balanced as well, he said.
“Put yourself in the judge’s position,” Roberts told the audience. “So many briefs say the case is so clear, that the statute can have no other meaning and … your client should clearly win. You pick up the next brief, and it’s the same on both sides.”
When both sides tell the court that their position is the only possible way to rule, Roberts continued, “They’re telling you basically that you are going to be an idiot whichever way you rule.”
It is far preferable, Roberts said, to read a brief that starts out with, “This case is a very difficult, close question, and there are good arguments on both sides.”
Acknowledging that the opponent has a plausible argument—and then answering it—is the right approach, Roberts said.
“You’re going to read that [brief] more seriously, because here is somebody who understands how hard my job is,” he said.