Professor Edward Cheng is circulating a new working paper entitled The Myth of the Generalist Judge: An Empircal Study of Opinion Specialization in the Federal Courts of Appeals. Professor Cheng studied all federal appellate decisions (with the exception of opinions from the Federal Circuit) issued between 1995 and 2005. He concludes that “opinion specialization [is an] unmistakable part of every day judicial practice.”
If true, this suggests a more focused approach for the federal appellate lawyer. One of the difficulties for the appellate practitioner is not knowing the audience for the brief. If, however, opinions are assigned based on the specialities of the individual judges, the brief can be written with those individual judges in mind. This population of potential opinion writers is still larger than the ultimate panel that will hear the case. Nonetheless, by studying whether a particular subset of judges in your circuit write most of the opinions in your area of the law, you have the opportunity of focusing your presentation to address the concerns of those particular judges.