IMLA Appellate Practice Blog - April 30, 2014.
Decisions across the U.S. identify, as one example of “bad appellate advocacy,” presenting too many issues on appeal. The Seventh Circuit applied those words to a brief that presented “12 issues for review—many with sub-parts, for a total of 21 principal contentions. Posing so many issues ensures that each is superficially argued.” Reed-Union Corp. v. Turtle Wax, Inc., 77 F.3d 909, 911 (7th Cir. 1996). The court in Carpinet v. Mitchell, 853 A.2d 366, 371 n.2 (Pa. Super. 2004), found much to criticize, finding itself “compelled to comment on the state of this appeal.” The court found itself ill-served by a trial court opinion which responds to appellant’s twenty-four claims of error in that court with a single paragraph which summarily concludes that “defendant’s claims of error are without merit” and does not discuss a single issue. Second, although appellant has reduced her claims of error to fifteen on this appeal, many of these have been waived by examination of the record which demonstrates a lack of record-protection awareness throughout the trial. In addition, we have said many times that urging a multitude of errors on appeal is generally seen as bad appellate strategy because the weaker or non-meritorious issues tend to detract from the more meaningful issues which may support a finding of reversible error.
There are other dangers besides superficial argument, as explained in Mesa v. Mesa, 652 So.2d 456, 457-58 (Fla. Dist. Ct. Appeals 1995): We too often see a shotgun approach being used, rather than selectivity, in raising appellate issues. This dilutes the effectiveness of the arguments on which the appellate court should focus. Because the appellant has the burden of persuading the appellate court that there should be a reversal, and because the vast majority of appeals are affirmed, the more attention the appellant gets from the court on a particular issue, the greater the chances for reversal on that issue. As the number of issues increase, the amount of time the court can devote to each issue decreases, or to put it more bluntly, when too many issues are raised an important one can get lost in the shuffle.
In United States v. Lathrop, 634 F.3d 931, 936 (7th Cir.), cert. denied, 132 S. Ct. 206, 181 L. Ed. 2d 111 (2011), the court noted that Lathrop presents nearly a dozen sources of error, effectively ignoring our advice that the equivalent of a laser light show of claims may be so distracting as to disturb our vision and confound our analysis. Seventh Circuit cases also freely use the kitchen sink and shotgun metaphors to describe too many issues on appeal. E.g., United States v. Pearson, 340 F.3d 459, 464 (7th Cir. 2003) (subsequent history omitted); Howard v. Gramley, 225 F.3d 784, 791 (7th Cir. 2000) (kitchen sink approach); Gagan v. American Cablevision, Inc., 77 F.3d 951, 955 (7th Cir. 1996) (appellants should use a rifle approach to briefing rather than bringing “their shotgun to Chicago”); United States v. Levy, 741 F.2d 915, 924 (7th Cir.), cert. denied, 469 U.S. 1021 (1984).
How Many Is Too Many?
There may be no absolute rule defining how many issues is too many. The cases addressing the point condemn anything in the double digits. Judge Ruggero J. Aldisert of the Third Circuit has observed: “When I read an appellant’s brief that contains ten or twelve points, a presumption arises that there is no merit to any of them. I do not say that it is an irrebutable presumption, but it is a presumption that reduces the effectiveness of appellate advocacy.” Aldisert, The Appellate Bar: Professional Competence and Professional Responsibility—A View From the Jaundiced Eye of One Appellate Judge, 11 Cap. U.L. Rev. 445, 458 (1982); see United States v. Hart, 693 F.2d 286, 287 n.1 (3d Cir. 1982).
Judge Aldisert used 10 to 12 as his guide for too many issues. Other numbers of issues that have been criticized include the 25 issues in Daddona v. Thind, 891 A.2d 786, 798 (Pa. Cmwlth. 2006); the 23 issues in Caln Nether Co., L.P. v. Board of Supervisors, 840 A.2d 484 (Pa. Cmwlth. 2004); and the 15 in Carpinet v. Mitchell, 853 A.2d 366, 371 n.2 (Pa. Super. 2004).
Where and What Issues to Prune?
Starting to prepare an appellate opening brief is a daunting experience even for an experienced attorney. Potentially tall stacks of pleadings and briefing papers in the trial court supplemented by perhaps a multi-volume trial transcript are enough to make many want to go back to bed. After reading it all and searching for appellate issues, the attorney may have a long list of errors and possible errors that might be raised on appeal. In the usual case, most of these issues will have to be discarded. How to decide which ones? There are no universal rules, but here are some questions to ask.
What Would Be Won with a Win? This question is logically the most important; it’s too easy to get caught up in the curious complexities of a legal issue and forget that even the most favorable result would not benefit the appellant meaningfully. The appellate world identifies many harmless errors that effectively amount to wins wholly without any benefit. For every appellate issue, counsel should be able to point to a clear benefit that would result from a win.
Is the Issue Worth Fighting Now? Attorneys sometimes remember the perceived injustice of an early ruling in a case and plan on seeking a reversal on appeal. The issue may be on the initial list even though intervening events have made the issue irrelevant or close to irrelevant. No matter how important it was, is it important now?
Whose Issue Is It, Anyway? An interesting issue may captivate an attorney even if the issue is not directly significant to the appellant. Will others in the case raise the issue so it can be addressed in a reply brief? Does appellant have clear standing to address it or will standing be yet another issue to address?
How Complex an Issue Is It Relative to the Likelihood and Value of a Win? A highly complicated issue may still be worth including in the brief if it looks like a winner and success will provide significant benefit. As the likelihood and value of success diminish, however, the difficult issue becomes less attractive. Given that the appellate judges may spend only so much time and effort on the appeal, is this the issue to spend them on?
Is the Issue Separate or Linked to Other Issues? A separate issue may require substantial briefing to present the context and law. If so, the issue should offer especially valuable benefits to be worth including in the brief. If not, perhaps the diversion from the other issues is ill advised.
Are There Political Problems Presented by the Issue? Using the term “political” in its broadest sense, some issues raise troublesome political concerns that make a favorable appellate decision less likely. The political concerns may pervade the appeal, leaving little to be done, or may be raised peculiarly by one argument or issue. In the latter case, appellant faces a hard decision. How much might be obtained without that one argument or issue? How important is a decision when pushing the hot button risks the wrong decision?
Image courtesty of Flickr by Phil Roeder (creative-commons license, no changes made).
* This blog post was originally published in IMLA Appellate Practice Blog, April 30, 2014. Republished with permission.