Narrowing the issues on appeal, according to the Pennsylvania Supreme Court, is the “hallmark of effective appellate advocacy.” In his book Winning on Appeal: Better Briefs and Oral Argument, Judge Ruggero Aldisert agrees wholeheartedly. But how can lawyers choose the issues to include in an appeal? Is there a magic number? Along with his own opinions, the book showcases the opinions of numerous federal and state judges about raising issues on appeal. Here is a spoiler: they all agree.
Narrowing Your Issues
Judge Aldisert suggests a two step approach to choosing your issues on appeal. In Winning on Appeal he explains that the “first step is to make an informal list of all the possible issues that may be presented.” But he cautions, that “this list is only the beginning point, and it will be over-inclusive. Unfortunately, too many brief writers consider it the ending point as well. They dump this gross listing on the laps of appellate judges instead of performing the crucial next step…”
While clerking I kept track of the potential appellate issues as they happened. If there was a close call on an objection, I jotted it down. Similarly, if a witness or attorney said something that could create an appellate issue, I made a note of it.
When reviewing transcripts now, I make a note of anything that could even come close to an issue on appeal. I keep these notes in one big word document with references to where they are in the record. This makes it much easier to comb through my list later on.
The second step, as you probably guessed, is weeding out the issues that do not have a reasonable probability of prevailing in the appellate court. No other issues matter. Judge Aldisert explains that you should only raise “case-dispositive issues and arguments that may carry the day.” This means really trimming the fat off of your earlier list.
It’s often too easy, as the judge points out, to let emotions play a part in choosing the issues. This is especially true where you were the trial attorney. At trial, emotions get heated. You may even get angry at the judge or opposing counsel. But emotions have no place in choosing your issues. Only cold, hard, tactical reasoning should play a part.
Is There a Magic Number?
After surveying numerous state and federal appellate judges, Judge Aldisert was not able to come to a conclusive magic number for issues. But he discusses the effect that the number of issues has on a judge at first blush.
Any briefs with just one or two issues tend to catch judges by surprise. There is a hope and assumption that the lawyer has really boiled down to the important points and raised them accordingly. For Judge Aldisert, any brief with three issues or less forces him to breathe a sigh of relief. At that number, there is a strong presumption that at least one of the issues will be valuable.
As the number of issues goes up, the confidence in the overall brief goes down. Aldisert explains that the more issues you have, the more likely a judge will form a negative inference about your entire brief right off the bat. In the book, he has a chart showing the inferences a judge may draw as the issues stack up. In his eyes, anything over seven or eight is really not where you want to be. As another judge pointed out, it’s very unlikely that the trial court messed up enough to warrant fifteen meritorious issues on appeal.
Do you think there is a magic number? Or do you take more of a “throw it all out there” type of approach?