A dead giveaway that a trial lawyer—as opposed to an appellate lawyer—has drafted a brief is that the brief argues a lot of issues. What does “a lot of issues” mean?
In Winning on Appeal, Judge Ruggerio Aldisert put it this way with regard to how he reacts to briefs in civil cases:
Three issues: presumably arguable points. The lawyer is primo,
Four issues. Probably arguable points. The lawyer is primo minus.
Five issues: Perhaps arguable points. The lawyer is no longer primo.
Six issues: Probably no arguable points. The lawyer has not made a favorable initial impression.
Seven issues: Presumptively, no arguable points. The lawyer is at an extreme disadvantage, with an uphill battle all the way.
Eight issues: Strong presumption that no point is worthwhile. To the lawyer: Go home. Do not pass “Go.'”
In an article entitled The Credible Appellate Brief, author Bryant J. Spann pointed out that, “as a practical matter, raising too many issues irritates jduges and their staffs, because even if you have not been careful in assessing the claim’s merits, the court must be careful in its disposition of the claim. In other words, more issues means more work for a busy court.”
How do you decide which issues to raise? If an issue is a threshold issue—in other words, the court cannot go further without deciding the issue—raise the issue, and make it Point I of your brief. One example of a threshold issue is subject matter jurisdiction.
Another way to choose which issues to raise is to become familiar with standards of review. Will the court review an issue de novo, or can it reverse only for clear error? De novo is a much more appellant-friendly standard of review. And don’t worry overmuch if the standard is “abuse of discretion.” As Aldisert explains:
If one starts with an understanding of discretion as encompassing the power of choice among several courses of action, each of which is considered permissible, it would seem difficult, if not conceptually impossible, to disturb discretionary choice on review. Nevertheless, appellate courts continue to do so, couching their actions in language which disclaims a substitution of choices for those of the trial courts.