Legal Writing,  Oral Advocacy,  Strategy

Narrowing Appellate Issues

D. Todd Smith makes a good point at Texas Appellate Law Blog in the context of explaining why he likes oral argument:

[O]ne of my favorite aspects of oral argument is that it forces you to distill your case down to the barest elements. As the appellant, if you can’t persuade the court based on your best two or three points—which should all be covered thoroughly in your brief—you’re probably going to lose.

Hear, hear.

I think the same approach pays off in briefing. Rarely do you read an opinion that refers to a “scattershot” or “shotgun” approach by the appellant where those terms aren’t used (at least implicitly) insultingly or, more importantly, where the appellant actually prevails on any of those issues.

This is often a battleground between lawyers and their clients at both the trial and appellate stages. Clients want to include every last morsel of how they may have been wronged, while attorneys — good ones, at least — recognize that simpler is better, especially if it means letting go of of weak arguments.

Ray Ward posed this question at the top of his post at the (new) legal writer warning about the dangers of the “kitchen sink” approach:

When we try to narrow down the issues and arguments in a brief, throwing out the weak ones and keeping the strong ones, we take a risk: the risk that we may be getting rid of something that would have persuaded the judge. So should we get rid of those weak issues and arguments?

Citing some other writers, Ward offers some compelling reasons for answering “yes.” Not only does he offer the negative consequences of presenting weak arguments, he also offers reasons (besides the remote possibility of success) why we come up with them in the first place and then why we are reluctant to get rid of them.

I don’t think it is possible to set a hard and fast rule on the cutoff point, i.e., that point at which the odds of prevailing on any given argument reach so low a level that it should be dropped. That will obviously vary from case to case. I suppose there are cases where an appellant might raise 7, 8, or even 10 strong issues — but I haven’t run across one.

I generally approach the issue from the opposite end. Rather than start with every conceivable issue and then determine which ones to drop, I start with those same issues, pick the best two or three, then determine which of the remainder to add. In other words, instead of looking at how weak an argument has to be before I drop it, I ask how strong an argument has to be before I include it. That’s a tougher test for those remaining issues, and it helps prevent the pride of authorship in an early draft (one of the obstacles noted in Ward’s post) from getting in the way.

We’re paid to use our judgment. Is there a risk that one of the arguments that was raised during your brainstorming stage but never made it into the brief might have persuaded the judges? Absolutely. But using that possibility — often a very remote one — as an excuse to include every argument is asking for trouble.

By the way, for a personal anecdote on a misadventure resulting from including a weak argument mandated by my supervising partner against my protest early in my career, see this earlier post of mine.