Tuesday, March 8, 2016

Appellate Advocacy: Use a high-powered rifle

Sometimes, common knowledge turns out to be not quite as common as I thought (and hoped). On appeal, the best of the best advise that you identify a a low number of issues, and focus your attention on those issues. For some reason, I still encounter appellate briefs with tons of issues.

One of my favorite books on legal writing is Judge Aldisert's Wining on Appeal. He spent about 45 years on the bench for the Third Circuit Court of Appeals (including jurisdiction over federal appeals here in Pennsylvania) - in other words, he probably knows what he's talking about. The Pennsylvania Superior Court has approvingly cited his sage advice:
"With a decade and a half of federal appellate court experience behind me, I can say that even when we reverse a trial court it is rare that a brief successfully demonstrates that the trial court committed more than one or two reversible errors. ... [W]hen 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 this is an irrebuttable presumption, but it is a presumption nevertheless that reduces the effectiveness of appellate advocacy. Appellate advocacy is measured by effectiveness, not loquaciousness." - Judge Aldisert
See, Kanter v. Epstein, 866 A.2d 394, 401 (Pa. Super. Ct. 2004)(quoting Aldisert, The Appellate Bar: Professional Competence and Professional Responsibility-A View from the Jaundiced Eye of One Appellate Judge, 11 Cap. U. Law Rev. 445, 458 (1982))(add’l citations omitted).

The latest issue of The Bencher (The Magazine of the American Inns of Court), includes the article, Effective Written Advocacy by Judge John R. Stegner. The article includes another great quote on the subject:
"Use a high-powered rifle, not a scattergun." - Judge Ronald Schilling, Idaho Supreme Court.
That pretty much sums it up, doesn't it?