The ability to narrow the issues on appeal “is the hallmark of effective appellate advocacy.” Smith v. Murray, 477 U.S. 527, 536, 106 S. Ct. 2661, 2667 (1986). “Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues.” Jones v. Barnes, 463 U.S. 745, 751-52, 103 S. Ct. 3308, 3313 (1983). Judge Ruggero J. Aldisert surveyed numerous federal and state court judges for his book Winning on Appeal: Better Briefs and Oral Argument (2d Edition, NITA 2003), and the judges explained that, as the number of issues in a brief increases, their confidence in the brief and its author goes down. The more issues a brief has, the more likely a judge will form a negative inference at the outset. Meanwhile, a brief with three issues or less catches judges by surprise and leads to a presumption that at least one of the issues will be viable. This is one of the few topics on which appellate judges at all levels seem to universally agree; quality over quantity is key to prevailing on appeal.
Narrowing the issues on appeal also has a secondary benefit – it narrows the facts and procedural history, as well. Once you have narrowed your issues, you are able to discard or significantly truncate the facts and procedural history that are not relevant to the issues on appeal. This enables you to sharpen the focus of the entire document.
Given the importance of narrowing the issues on appeal, appellate advocates should develop and employ a process to separate viable issues from non-viable ones and discard the latter. The first step in this process is creating a master list of the potential issues. If you were trial counsel, hopefully you made a note every time a potential appellate issue arose during the course of the proceedings, along with a reference of where in the record to find it. This is preferable to trying to recreate this list after the fact from memory. If you are new to the case, then you will need to review the record and note any potential appellate issues that you run across.
Remember, this list is merely the beginning point, and will be over-inclusive. It is the next steps that will distill this list down to the narrow, concise list of issues which will set your brief apart from those of attorneys who dump everything in the appellate panel’s lap.
The second step is to take your master list of potential issues and group similar or related issues into categories. For example, you might have several evidentiary objections that were overruled or objections by your client’s adversary which were sustained, resulting in evidence or testimony being precluded. Or, there may be more than one procedural issue, as opposed to substantive issues, upon which you can obtain reversal or affirmance. This will also assist you in identifying stand-alone issues (dispositive issues upon which prevailing would entitle you to win the appeal) from mere sub-issues (an issue that would not guarantee victory in the appeal, but may provide a piece of a stand-alone issue or serve as one of several parts of a cumulative error argument). This process will also assist you in seeing the relationship between the stand-alone issues as part of an overall strategy on appeal.
The third step is weeding out issues that do not have a reasonable probability of prevailing on appeal. A key element of this step is emotional detachment. It is easy to allow your or your client’s emotions to play a part in choosing the issues, especially if you were also the trial attorney. But, emotions have no place in choosing the issues on appeal. Instead, use cold, tactical reasoning. Make sure that you can separate your emotions from the process and objectively evaluate the potential issues on appeal, even if this means setting the matter down for a time or involving a colleague or associating counsel to ensure objectivity.
Another critical aspect of this step is familiarity with the standard of review for the groups of issues you developed in the second step. This permits you to give a much more accurate analysis of the prospects of each issue as you weigh the strength and weakness of the arguments against the hurdles imposed by the applicable standard of review. The better the standard of review, the lower your burden on appeal, and the less you need to show to prevail.
In narrowing your list, you should focus on the stand-alone issues that may carry the day. Ideally, these are the strongest issues on the facts and law with the most favorable standards of review, such as de novo. You should strive to eliminate any issues with low chances of success or highly unfavorable standards of review, such as abuse of discretion or clear error. You must consider that, generally, mere error is insufficient to carry the day; you must also demonstrate prejudice. It is of little benefit to waste time and resources arguing a point only to be technically correct, but still lose, because the error was harmless. You should also strongly consider eliminating issues that are not properly preserved for review, as they impose the nearly impossible additional burden of overcoming the failure to preserve. Regarding the sub-issues, strongly consider whether they are necessary at all (do they add an important piece to a dispositive issue or are they merely hollow points on which prevailing gains nothing because they are not dispositive?) and make sure they are not duplicative of one another. While there is no “magic number” of issues, remember that it is the rare case where more than three issues on appeal are warranted.
Lastly, after distilling your list to a handful of quality, dispositive issues, make sure that you also distill the factual and procedural sections of the brief to include only the facts and proceedings relevant to those issues. If none of your issues on appeal involves discovery, then there is generally little need to go into detail about the facts and procedures in the case regarding discovery. The result of trimming the issues and facts to include only what is relevant to those issues is a lean, concise brief that the appellate court will appreciate because it reflects the time and effort taken to properly narrow the issues raised.
Tagged: Appellate Practice, Litigation, Appellate Procedure