HOW MANY ISSUES?
[Posted January 27, 2014] As a member of the ABA’s Litigation Section, I receive that section’s quarterly journal, Litigation. The Winter 2014 issue arrived while I was away from the office late last week, and a teaser on the cover promised an appellate article: “Selecting Arguments on Appeal.” Thinking that might make for some good reading, I tucked the issue under my arm as I walked out for a quiet lunch today.
The article is written by a Houston lawyer named Martin J. Siegel, and it echoes most of the advice that I’ve seen in this type of piece – fewer issues are better than more; don’t weaken your strong arguments by throwing in weaker ones; resist the temptation to throw in plenty of arguments as a form of defensive lawyering. He quotes one of my favorite treatments of this issue, Judge Ruggero Aldisert’s “litmus test” based on the number of issues in a brief (hint: the more issues, the worse the judge’s impression).
The essay goes a bit further, though, and I appreciated Siegel’s take on how to decide whether to keep or toss a close-call argument. He recommends that you “[d]iscard issues that will not change the outcome or might only modestly reduce a damages award.” He suggests that you consider the “nature and strength of the supporting legal precedent,” noting that there’s usually a difference between a hoary pronouncement from the Nineteenth Century and a relatively new common-law doctrine.
He sensibly recommends that the lawyer consider the effect of this case on future cases, which is a fairly elementary principle that nevertheless many lawyers just don’t remember. As I put it a while ago, once you get to an appellate court, you’re no longer defending a client; you’re defending a doctrine. He also wisely advises against adding even a strong argument if doing so will take an inordinate amount of space in the brief, because the issue is so convoluted.
Readers of the journal also get a lagniappe – a responsive commentary by Third Circuit Judge Joseph A. Greenaway, Jr. In this “Sua Sponte” riposte, his honor adds some very useful thoughts, including this challenge to accepted appellate wisdom on how to order your arguments: “Choose not just your best argument first, but your most interesting, particularly as an appellant.”
Throughout this exercise, I noticed one dog that did not bark in the night. Neither Siegel nor Judge Greenaway mentioned the law-of-the-case doctrine, and how it can affect your decision to appeal more issues – even those that are weaker. Here’s what I mean:
Let’s suppose that you’re representing an appellant, and you’re preparing a petition seeking reversal of a very large judgment, followed by remand for a new trial. You have what you think is an excellent, cogent, and easy-to-explain argument for reversal based on a jury instruction. Despite the adverse verdict, you think you’ll have the upper hand on appeal (defective instructions really are one of the best ways to canopener an adverse verdict in an appellate court). You also have a potential issue based on the trial court’s decision to admit the testimony of the plaintiff’s expert, Roscoe Q. Cornercutter; you’re convinced that the trial judge erred in allowing him to testify, and his testimony really hurt your client before the jury. Based on the looser standard of review for admission of evidence, you’re inclined to omit this weaker argument, so you can focus the appellate court on your killer argument for reversal.
Think again. If the expert’s testimony hurt you last time, it’ll probably hurt just as much on a retrial. If you choose not to appeal the decision to allow him to testify, that ruling becomes the law of the case, and it’s binding on the trial court and the parties on remand. Monahan v. Obici Med. Mgt. Servs., 271 Va. 621, 637 (2006). That means you may get your new trial, only to face a similarly bleak prospect the second time around. In this situation, you really must add that second argument, so you’ll have a chance to get out from under that adverse ruling; if you don’t appeal it, it gets embalmed and cannot be revisited, even if you have a different judge for the second trial.
There’s one more consideration that doesn’t appear in either essay. Indeed, you could read them and conclude that they counsel the opposite of what I think is wise. It’s a dilemma that I faced when I represented the Gloucester 40 a few years back, in Johnson v. Woodard. My clients were 40 citizens of Gloucester County who had circulated and tendered petitions seeking the removal of four members of the county board of supervisors, after the supervisors had been indicted for malfeasance in office. The trial court eventually granted a motion to nonsuit the removal petitions, but before he let go of the case, he sanctioned each of the 40 citizens $2,000, for a total of $80,000.
To me, this was a lay-down writ and reversal, based on the Petition Clause; you can’t punish American citizens because they petition their government for redress of grievances. That was the killer argument, the one that would get headlines, and the one that would generate a stirring majority opinion that extolled the virtues of the First Amendment. Oh, I had a fall-back argument, too, based on the contention that the sanctions statute only applies to parties and their counsel, and despite the fact that they had filed the petitions in the clerk’s office, the citizens weren’t parties to the litigation (the removal statutes mandate that the petitioner in such an action is the Commonwealth).
I badly wanted to press the First Amendment issue as far as it would go, so I briefly considered leaving out the statutory issue in the interest of brevity. But I mused that it was quite possible that the justices would reverse on the statute, without reaching the constitutional question, since the court always decides cases on non-constitutional grounds wherever possible. In the end, I had 40 clients to represent, and they weren’t interested in how I got the sanctions reversed; they just wanted them reversed. I decided to include the statutory issue, and sure enough, that’s the issue upon which the justices reversed – without ever touching the Petition Clause.
The lesson of this is that a lawyer has to make judgment calls about which issues to include in an appellate brief, and while the general rule is that shorter briefs, with fewer issues, are to be preferred, it isn’t a categorical mandate. I earnestly counsel against the shotgun approach – that really is poor advocacy disguised as defensive lawyering. But on occasion, I have to file petitions that contain more than my ideal number of assignments of error, which is one.