So How Many Issues Do You Raise on Appeal?
Posted on April 3, 2014
Sometimes I see judges or appellate lawyers advise that an appeal brief should not include every valid argument that could possibly be raised on appeal, but only the very best arguments available. There are many good reasons for limiting the number of arguments raised on appeal. It’s hard for a lawyer to fit many arguments in an appeal brief and still do a thorough job supporting each one, judges lose focus when many issues are raised, and the weakness of some arguments may damage the appellant’s credibility as to stronger ones. Yet, I have seen this approach taken to an extreme by some in advocating that an appeal only raise one or two issues and no more. I’ve had a lawyer tell me with a straight face that you couldn’t raise more than two or three issues on appeal of a jury verdict because the appellate judges wouldn’t believe a trial court judge could make so many errors and you would thus lose credibility.
I disagree. Perhaps I am a contrarian. Perhaps this some might think this controversial.
While I would never consider raising on appeal an issue that can’t pass the “red face test” (would you blush raising the argument during questioning at oral argument?) and I’m not an advocate of lengthy appeal briefs, I believe it’s an appellant’s best interest to raise every argument deemed to have real potential to be found meritorious, whether that be just two or perhaps even five or more. While you don’t want the court to think you’ve taken the “shotgun” approach appellate argument, I have a problem with the idea that a lawyer advocate can effectively presume what arguments an appellate judge may find meritorious enough to reverse a judgment and thus eliminate valid arguments of reversible error in favor of what is believed to be the two “best.”
Perhaps this is because I’ve seen how the “sausage” of an appellate decision is actually made at the state supreme court level, and have even seen a judgment reversed based upon a small point made only in a footnote of an appellant’s brief that very well might have been deleted had the brief needed further editing. So I believe every issue supported by the facts and the law, or even a good faith argument for a change in the law, is valid to raise on appeal.
That’s not to say you treat every issue raised on appeal in the same manner. I believe you lead your appellate argument with those issues and arguments you see as strongest, fully develop those, and then address others concisely, perhaps to be addressed more fully in the reply brief. But you don’t just leave valid arguments for reversal in your notes in the case file on your office desk. What do you think? Am I wrong?