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Why an Appellate Attorney Should Narrow the Issues on Appeal.

Posted on 4 June, 2014 at 14:05

One of the most difficult tasks appellate attorneys face is narrowing the issues on appeal. The mastery of this skill set is critical to appellate practice. An appellate attorney preparing an appellate brief must ensure that the brief is crisp and focuses on jugular issues. Jugular issues are those issues that have a good chance of winning the appeal. Consequently, an appellate attorney should limit this argument to approximately four appellate issues. Lawyers that throw fifteen or twenty appellate arguments into their appellate brief are simply wasting everyone’s time – most importantly their client’s.

 

One reason to narrow issues on appeal is that appellate briefs have page limitations. When an attorney chooses to recite a laundry list of appellate arguments in the appellate brief, the attorney is unable to properly brief the law and develop the argument in any significant way due to the page limitations. This results in a less persuasive argument on all issues which only decreases your chances of success on appeal.

 

Some attorneys rationalize listing twenty appellate issues claiming that it shows how many errors littered the lower court proceeding. This is usually an unpersuasive argument in an appellate court. No proceeding is perfect. The appellate court, however, is only concerned with prejudicial error. Arguing tangential issues which did not result in prejudicial error is simply wasting the court’s time.

 

Another common rationalization is that listing all your client’s complaints about the proceeding makes the client happy. This is usually true in the short term. When the client reads the initial brief recounting all their complaints, they are usually very pleased because they know you were listening. However, your client is most likely not an attorney and your client hired you for your knowledge and experience in appellate practice. Their happiness will quickly dissipate when the brief in opposition and the appellate court’s decision recite all the reasons your laundry list of appellate issues fail – namely, that you wasted the court’s time with errors that did not rise to the type of prejudicial error that warrants appellate relief.

 

As an attorney you must listen to and digest everything your client brings to your attention. If your concern is making sure your client knows that you understand their position, the place to do this is in detailed conversations as to why certain errors are not appealable issues and why you are pursuing certain issues and not others. The appellate brief is not the place to do this. Your client is hiring you to give them the best chance of winning on appeal. They are not hiring you to appease them and give them false hopes. 

 

Because an appellate brief should be crisp, an appellate attorney must identify only the very best issues on appeal. This is done through a meticulous review of the record. A good appellate practitioner must pinpoint the critical mistakes that occurred in the lower court and should not be concerned about picayune matters that waste precious space. Remember, a good appellate brief should be limited to approximately 25 pages and thus your available space in an appeal is precious and should not be wasted on trivial matters. 

 

Written by:  Alexandra Siskopoulos, Esq.

Telephone:  (646) 942-1798

Email:          [email protected]

 

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Categories: Appellate Attorneys