The Risks of a “Hinge Point” Appellate Argument.
Posted on September 29, 2015
A “hinge” allows a door to swing left or right, and back again. In making a legal argument, I use the term “hinge point” to refer to a single issue upon which an appeal may be won, or lost. In appellate advocacy there are often many issues raised on appeal and they may often be decided independently of each other. However, a technique that may be made on appeal in certain limited instances is to focus the resolution of the appeal on a certain single question of law or question of fact.
In other words, you roll the dice for the entire appeal on winning that one single point. It’s a confident, win-it-all or lose-it all-strategy that avoids the weakness of providing the court a trailing litany of alternative arguments.
This strategy can be put into effect several ways. You can decide upon using the hinge point strategy by raising only a single issue on appeal or by making a single argument against an issue, forcing the court to rule in favor of or against your client based on what you believe to be your most favorable point.
Or you can argue in response to or in support of one or more issues, that a single fact or point of law controls the outcome. Thus, you decline the usual strategy of a multi-layered alternative argument approach.
This is, of course, potentially a very risky strategy for either an appellant or the appellee. However, if your client was loser below, there’s nothing left to lose so why not approach the appellate court with confidence if you have an issue strong enough to stand alone? If your client was the winner below, this strategy may be appropriate where a point of law or a finding of fact is strongly in the client’s favor. If I’m seriously considering this approach where potentially meritorious issues will not be raised, and potentially meritorious arguments will not be made in order to support the strategy of focusing on a singular point, I’ve been sure to have a frank discussion with my client and obtain permission before implementing the strategy.
If you’re the appellant, very often, when it comes down to it, most potential arguments/issues are losers on appeal. I make every effort to narrow the case down to one to three issues if for no other reason but to show the court of appeal that I have some idea of what I’m doing and that I’m therefore serious about those issues. I think it makes it more interesting for the court as well, and less mundane. If there is a need for more issues to be raised, I might address that need in an aside. Enjoy your blog.