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“Just a Brief Writer?” – For the Defense

On November 23, 2009 by Schnader

Nancy Winkelman, co-chair of Schnader’s Appellate Practice Group, authored an article titled “Just a Brief-Writer?” published in the November 2009 issue of For the Defense, the monthly publication of the Defense Research Institute (DRI). Ms. Winkelman writes that briefs have now replaced oral arguments as the main source of communication with the appellate court and she argues that lawyers should treat them as the equivalent of the cross-examination of a key witness. This is because the majority of appeals are decided without oral argument. In addition, even when there is oral argument, it is the brief that serves to convince the court that the case is important enough to warrant argument. However, lawyers without appellate experience are frequently given primary responsibility for writing the appellate brief, while more experienced lawyers on the case count on making their mark during oral arguments. Ms. Winkelman says, “With oral arguments becoming less and less significant and brief-writing becoming more and more important to the outcome of appeals, it seems counterintuitive that so many experienced lawyers are content to relegate the bulk of brief writing to their colleagues without appellate experience.”

The article also appeared in Litigation, which is the the journal of the American Bar Association Section of Litigation, Vol. 29, No. 4, Summer 2003 and was selected for reprint in The Litigation Manual: First Supplement, American Bar Association, May 2007.