Tools for Scoping out the Court
When you are writing an appellate brief or preparing for an oral argument, it is important to keep your audience in mind–the judges (and, let’s be real, their clerks). You don’t write to impress your client, your boss, our your mom–you write to impress the judges and to get them to decide the case in favor of your client (which will, of course, impress your client, your boss, and your mom). Part of writing for judges means knowing what they want. So, how do you figure that out? Well, for starters, you know that they want shorter briefs. In surveying judges for the third edition of Winning on Appeal, we found that judges overwhelmingly think that briefs are too long. It is the single issue that all judges seemed to agree on. Apart from that, it can be helpful to research the judge or judges that you are appearing before to get an idea of what that judge wants.
How do you research them? Apart from talking to others that have appeared before the same court and judges, there are now some really great computer based tools to help. Today I would like to talk about two such sources.
The first source is Context from Lexis Advance. You can read the Lexis marketing materials on it here. For those of you who are real research nerds (like me), you might better know Context as Ravel’s Judge Analytics. Lexis acquired Ravel a year or two ago, and they are continuing to integrate all the cool Ravel computer stuff into Lexis. What can Context tell you about a judge? Well, a lot. In addition to a short bio, you can find that judge’s opinions by areas of the law. You can see how the judge rules on particular types of motions (trial judges), and you can see what opinions that judge frequently cites to (and what judges). For example, I searched for the late Justice Scalia. I found that his most cited case was Chevron. Context even shows me the parts of the opinion that he most frequently cited to. His most cited judge was Justice Byron White, followed by Justice Rehnquist and then himself.
Westlaw Next or Edge or whatever we call it now just rolled out a similar product–Litigation Analytics. You can read the Westlaw marketing materials here. Their product seems to have more options (you can search law firms too). I searched for Justice Scalia on Litigation Analytics to see how the results differed. Litigation Analytics has a nice, comprehensive biography of Justice Scalia’s career. According to Litigation Analytics, Justice Scalia cited to himself most often, followed by Justices Kennedy and O’Connor. His most often cited case was Payne v. Tennessee. I am not sure what accounts for the differences between the two services, but it might that one includes Justice Scalia’s D.C. Circuit service and the other doesn’t.
I think that both resources provide valuable insight into anyone writing an appellate brief (or preparing for oral argument). Both services include local judges–I looked up by name a local Pima County Superior Court judge and he was there.
But, apart from their usefulness to appellate attorneys, the services provide another valuable role. They are excellent for law students who might be interested in interning or clerking for a judge. You could get a wealth of knowledge about a particular individual before you step into that interview. I plan on encouraging my students to consult one or the other as they work on their clerkship applications.