1.2 KNOWYOURAUDIENCE

At this point in your law school career, you have probably written at least two kinds of documents: an office memo and a case brief. As you know, a typical office memo is a document that an attorney writes to a supervising attorney.

An appellate brief is written to an appellate court. As you know, both state and federal court systems include at least one level of appellate review; most include both an intermediate appellate court and a court of last resort. For example, in the federal system, when a federal district court issues a final order, the losing party may appeal to a United States Court of Appeals in the relevant circuit. When the Court of Appeals issues its decision, the losing party may file a writ of certiorari that asks the United States Supreme Court to review the decision of the Court of Appeals.

The party that brings the appeal may be called the appellant, because he or she is appealing to the higher court to review the decision. The party opposing the appeal is often called the appellee. In some courts, the party bringing the appeal is called the petitioner, because he or she is petitioning to the higher court to ask for its review. In those courts, the other party is often called the respondent, because he or she is responding to the petition for review.

The audience for a motion brief, in contrast, is usually a trial court. Attorneys write motion briefs to argue that a court should grant or deny a particular motion. A motion is a formal request that the court take an action or make a decision relevant to a case before the court. Whenever a party wants the court to take any action in the case (other than the decision on the merits), it must move the court or file a motion. The parties may file a motion to ask the court to postpone the trial date, to limit the kinds of evidence that may be heard in a case, or to decide in favor of one party or the other without a formal trial. The more significant the motion, the more likely it is that the parties will support the motion with a motion brief.¹

In a motion brief, the attorneys support their arguments by analyzing how the controlling law applies to certain agreed-upon facts (usually the facts that the plaintiff provided in the complaint; sometimes these facts may be supplemented by affidavits or other documents). The party who filed the motion (often the defendant) is sometimes referred to as the movant or the moving party. The moving party writes the Brief in Support of the Motion. The party who did not file the motion, sometimes referred to as the opponent

or the non-moving party, writes the Brief in Opposition to the Motion. The parties are also referred to by their categorizations of plaintiff or defendant, as appropriate. Although many motions are decided on the basis of the briefs alone, the court may ask counsel to participate in an oral argument to help it decide the issues before it.

Whether you are writing to an appellate court or a trial court, you are writing to a busy reader. The United States Supreme Court, for example, hears 70-80 cases per term. Consider that each case requires reading several documents. The petitioner submits a brief accompanying the petition for writ of certiorari, and the potential respondent often submits a brief in response.

Thus, even estimating conservatively that each case generates around seven documents, Supreme Court Justices and their clerks are reading at least 350-500 briefs per year. Of course, this statistic does not take into account the reading required when the Justices review the joint appendix (selected elements of the case record) and the statutes, cases, and other sources cited in the briefs. It also does not take into account the time spent reviewing the thousands of certiorari petitions that are ultimately denied or — by the way — the time spent writing opinions.

The numbers are equally impressive in other courts. Judge Boyce F. Martin, Jr., of the United States Court of Appeals for the Sixth Circuit, estimated in 1999 that the average judge on the Sixth Circuit sits on 32 panels and hears 192 cases a year.²The Federal Court Management Statistics for the United States Court of Appeals revealed that in 2017, the average circuit judge was responsible for deciding hundreds of cases and writing anywhere from a dozen to 289 signed opinions and from one to 200 unsigned opinions.³At the statecourt level, an intermediate appellate judge may write anywhere from 50 to over 100 opinions each year.⁴ Presuming that these judges sit on three-judge panels and that the opinion-writing duties are evenly spread, even judges who write fewer opinions may hear 150 to 300 cases per year.

An associate justice in Maine’s highest court noted that during her first six months on the court, she and her colleagues heard 114 oral arguments and conferenced 181 cases on briefs alone, in addition to reviewing 120 petitions for review of workers’ compensation matters.⁵ A former Wisconsin Court of Appeals judge estimated that he read 24 sets of briefs per month, or almost 300 sets per year.⁶ In 2014, an Arizona appellate judge estimated that, in his first year of service on the court, he “read perhaps a thousand briefs in hundreds of cases.”⁷Although cases submitted to lower courts may not generate the same number of documents as cases submitted to the United States Supreme Court, the number is still daunting.

Writers of motion briefs should not presume that their trial judges have ample time to read, either. Although state court caseloads have reported a decline in recent years, the workload is far from light.⁸ One trial judge observed that, while hearing and deciding motions is “but a small part” of the work of a trial judge, it has become “overwhelming.”⁹ A federal district judge noted that “[a]t any given time,” on her own docket she carries “approximately 500 civil and another 75 criminal cases,”¹⁰ while another describes her assigned caseload as “voluminous.”¹¹

Think about these statistics when you make every decision — from whether to file a motion or an appeal,¹²to the number of issues to argue, to (especially) how to organize and write the brief. Your goal should be to produce a document that can be understood by a busy reader the first time through without reference to outside sources.