Looking at the Most Influential Writers Before the U.S. Supreme Court

What’s the most effective writing style for lawyers filing briefs before the U.S. Supreme Court?

“I’d say relatively short sentences, with a non-confrontational tone,” said Adam Feldman, a Ph.D. candidate in political science and international relations at the University of Southern California, who has become an expert on the matter.

This year, Feldman studied 9,400 merits briefs and their respective Supreme Court opinions from 1946 to 2013, and found a number of trends. In an academic paper titled, “Who Wins in the Supreme Court? An Examination of Attorney and Law Firm Influence,” Feldman lays out his findings, including which lawyers and law firms encountered the most success in having their language adopted in Supreme Court opinions.

He told Big Law Business that experienced lawyers who write in short sentences and an active voice are more likely to be influential in law-setting Supreme Court decisions.

Feldman used several language and data analytics tools to help him analyze the text of the 9,400 briefs and opinions he combed to look for patterns and statistics on the amount of language carried over into Supreme Court decisions. Among them: StyleWriter, Stata and RapidMiner, an open source data analytics software.

Experienced lawyers, or those appeared more than five times as the counsel of record before the Supreme Court, average about 200 words less per brief than less experienced lawyers, or those listed as counsel of record five times or fewer.

“It seems like some of the dry regurgitation of the lower court opinions ... is not as much the case from the more experienced attorneys, where they’ll be using more active verbs,” he added. “I think they try to engage the reader in a way that they’ll pick it up and not put it down as quickly.”

Individually, Feldman named Carter Phillips of Sidley Austin and Chief Justice John Roberts, who once practiced at Hogan & Hartson, as the most successful lawyers because they were the most experienced before the Supreme Court and because the Court consistently adopted portions of the language in their briefs.

He said, however, that the lawyers’ success didn’t translate to their firms’ success: O’Melveny & Myers was the No. 1 most influential firm at the Supreme Court, followed by Covington & Burling. Sidley came in No. 3 and Hogan No. 5.

Feldman attributed the difference to the fact that the briefs aren’t always filed by the same attorney and firms have varying levels of talent.

He also found that the Supreme Court is largely favorable to Solicitor Generals, and that after they leave the Office of the Solicitor General to join private practice, justices don’t seem to side with them as much.

“These ex-solicitor generals are still performing far better than the norm,” Feldman said. “But when you look at the numbers with how successful they’ve been, compared to how they were in the office, there is this huge differential point.”

Feldman said that the difference is rooted in trust and credibility.

“There seems to be a built in relationship between the Court and the office that once you leave the office, you don’t have that institutional backing,” he said. “Justices know these are private practice attorneys whose end game is ultimately different from when they were working in government.”

(UPDATED: This article has been corrected to clarify the credentials of the author of the academic paper)