Here’s one of the philosophical disagreements that make my life interesting: Is it better to include more assignments of error in a petition for appeal, or fewer?
Obviously, there’s no one-size-fits-all answer. I bet that there are some cases out there that warrant nine assignments of error. And there are surely some that merit zero.
That said, over the broad run of cases, I suspect that most appellate practitioners (and all appellate judges, ever) will go with “fewer.” But a surprising number of trial lawyers–and a huge number of clients–seem inclined to take the “more is more” route. I tend to disagree, for a few reasons:
- You get limited space to develop an argument on appeal. A petition for appeal in the Supreme Court of Virginia is limited to 35 pages; a merits brief is capped at 50 pages. And those aren’t real pages–they’re 14-point double-spaced Arial/Verdana/Courier pages. It’s tough to lay out the necessary background and develop more than 3-5 arguments in that space.
- Appellate judges have limited time and energy to devote to any particular brief. They already do way too much reading . They’re on record, over and over again, screaming from the mountain tops that they appreciate tight and efficient briefs. It’s probably worth taking them at face value on this one.
- Generally, anything in a brief that doesn’t help, hurts. It dilutes the force of your best arguments and strains the reader’s focus. It also increases the likelihood that you’ll say something stupid. This is a lesson that I have learned (and forgotten and relearned) many times over the course of my career.
- It’s difficult, but not impossible, to convince one judge that another judge made 2 or 3 outcome-determinative mistakes during the course of a trial. It’s a bit harder to convince one judge that another judge made 17 real mistakes during the course of a summary judgment hearing.
- If you can’t win with your best points, then you will probably lose with your weaker stuff. As the crusty old bastard said, one has to try to strike the jugular and let the rest go.
But you don’t have to take my word for it; longtime readers know better than to do something like that. Instead, you can remember this handy table that Judge Aldisert created:
|No. of Issues||Judge’s Reaction|
|3||Presumably arguable points. The lawyer is primo.|
|4||Probably arguable points. The lawyer is primo minus|
|5||Perhaps arguable points. The lawyer is no longer primo.|
|6||Probably no arguable points. The lawyer has not made a favorable initial impression|
|7||Presumptively, no arguable points. The lawyer is at an extreme
disadvantage, with an uphill battle all the way.
|8||Strong presumption that no point is worthwhile|