Monday, April 16, 2018
Last week I blogged about my trip to Little Rock to speak on Top Tips from Appellate Judges. In that post, I discussed the first tip--to keep your briefs, brief. Today I want to focus on the second tip--to limit your issues on appeal. Following this second tip will help you achieve the first.
When we surveyed judges for the third edition of Winning on Appeal, we specifically asked them about selecting issues to appeal. In response, many judges provided their views on the number of issues that you should raise on appeal. On the low end was the recommendation to raise “one or two of your best issues that will really decide the case.” On the high end was the advice to “[f]ocus on fewer than five strong points. Three is good.” Most of the judges recommended raising no more than three issues.
So, how do you decide what issues to appeal? The judges provided several good tips:
- "Moot" your issues as you would an argument. This can help you analyze the strength of each issue.
- As yourself if you would be "willing to spend your entire oral argument on [an] issue[.] If so, include it."
- Pick only the most “credible” issues or ones that will “really decide the case” or “really matter.”
Several judges noted that including weak issues hurts the credibility of the brief writer. As one judge put it, “A brief with fifteen or twenty assignments of error tells me that the attorney is grasping at straws. No trial judge I ever knew was so bad as to make that many errors.”
There are, of course, complicated cases that may raise more than three issue. But, as a good rule of thumb, follow the advice to limit your issues on appeal and the judges will thank you!