Written arguments submitted to the Supreme Court by the parties in the cases and other interested individuals or organizations. The documents are called briefs because the Court limits the scope and length of documents it permits to be filed.
Of the thousands of certiorari petitions filed each year, only about one hundred twenty cases are selected to be heard by the Supreme Court. Therefore, the importance of the briefs filed to the Court cannot be overstated. Although oral argument may provide a dramatic stage for presenting the case, the written briefs contain the advocate’s best efforts in written persuasion, and the Court will have scrutinized the briefs before hearing oral argument.
Various briefs are filed with the Court. Each is required to be bound with a particular binding: blue for petitioner, red for respondent, yellow for reply briefs, green for amicus curiae briefs, gray for the solicitor general’s briefs, and tan for appendices briefs. Under the Court rules, the briefs are generally limited to fifty pages and must adhere to certain requirements of order, format, and content. The brief for the petitioner, for example, must include the following sections in the order stated: Questions Presented, List of Parties and Corporations, tables of Contents and Authorities, Opinions Below, Jurisdiction, Statutes Involved, Statement of the Case, Summary of the Argument, Argument, and Conclusion. Although the Argument is the longest section in the brief, two sections in the preliminary parts of the brief are vitally important. In the Questions Presented section, counsel articulates the exact questions raised in the appeal, and in the Statement of the Case, counsel establishes the factual foundation on which the argument is based. Both these preliminary sections, although short, must provide the Court with a clear overview of the brief’s position.
The Argument section of the brief thoroughly explains and promotes the party’s position. An effective argument is written in clear, plain English and is well organized. Mere citation of cases never supplants the careful analysis and application of those cases to the issue before the Court. The analysis of a cited case involves demonstrating its relevance to the appeal, an analysis of the cited case’s reasoning, and a demonstration of its application to the issue at hand, usually by analogizing the facts of the decided case to the facts of the issue now before the Court. The Argument will discuss not only favorable precedent but also that which opposes the proposition advanced. Because a decision by the Court usually has far-reaching policy implications, briefs must also contain persuasive policy arguments that illustrate the reasonableness of the argument promoted.
Some of the rhetorical devices used in the Argument section can be traced to classical antiquity where the term “rhetoric” was more closely attached to legal argument than it is today. Although these early arguments were indeed oral arguments, many of those rhetorical devices are seen in the Argument sections of effective briefs, including not only the discovery of available arguments but also their arrangement and rebuttal. Hence it is not unusual to identify various rhetorical devices being used by the skillful advocate.
The petitioner’s brief is filed first, followed by the respondent’s brief, which is followed in turn by the petitioner’s reply brief. The petitioner’s brief faces some special problems in that the petitioner’s brief is written and filed without seeing the respondent’s brief. Hence the petitioner must anticipate the arguments and the cases that the opposition may plan to use. The lawyer is also under an ethical obligation governed by the Code of Professional Responsibility, which requires that a lawyer disclose to the Court legal authority that is directly adverse to the client’s position. Apart from the ethical obligation, it is effective advocacy to include hostile precedent because it provides the brief writer with an opportunity to present these cases in a light that still illuminates the strength of the position argued. Here the advocate must distinguish the unfavorable precedent from the present case on its facts, establish that the reasoning of the case is flawed, or show that to adopt the holding of the case would be bad policy. To overlook unfavorable precedent would play into the opposition’s hands. The petitioner, by filing its brief first, has the advantage of defining the issues first so that the respondent must redirect the Court’s attention rather than just argue the respondent’s position. Well-written respondent’s briefs are more than mere responses to the petitioner’s brief; they are also able to weave their affirmative arguments into that response. Finally, the petitioner also has the right to a reply brief, a shorter brief, usually no more than twenty-five pages, that attempts to rebut arguments raised in the respondent’s brief, somewhat similarly to the way the petitioner uses rebuttal on oral argument.
In a departure from tradition, in 1997 a brief in compact disk format was filed with the Court. This brief contained internal hypertext markup language (html) with electronic links to the record and cases cited in the brief.
Amicus curiae (“friend of the court”) briefs are filed by individuals or organizations that, although not a party to the appeal, have an interest in the appeal. These briefs are filed only with the permission of both the party the brief favors and the Court. Controversial issues usually invite such briefs. Most amicus briefs are filed by the solicitor general on behalf of the federal government. In some years the Court may see as many as three thousand such briefs.
Aldisert, Ruggero J. Winning on Appeal: Better Briefs and Oral Argument. Notre Dame, Ind.: National Institute for Trial Advocacy, 1996. Del Carmen, Rolando V., and Jeffrey T. Walker, eds. Briefs of Leading Cases in Law Enforcement. 5th ed. Cincinnati: Anderson, 2004. Simpson, Reagan William. The Amicus Brief: How to Be a Good Friend of the Court. 2d ed. Chicago: ABA, Tort Trial and Insurance Practice Section, 2004. Stern, Robert L., Eugene Gressman, and Stephen M. Shapiro. Supreme Court Practice. 6th ed. Washington, D.C.: Bureau of National Affairs, 1986. United States Supreme Court. Landmark Briefs and Arguments of the Supreme Court of the United States. Washington, D.C.: University Publications of America, 1893- . Ward, Artemus, and David L. Weiden. Sorcerers’ Apprentices: One Hundred Years of Law Clerks at the United States Supreme Court. New York: New York University Press, 2006.
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