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Narrowing Your Issues
Judge Aldisert suggests a two step approach to choosing your issues on appeal. In Winning on Appeal he explains that the “first step is to make an informal list of all the possible issues that may be presented.” But he cautions, that “this list is only the beginning point, and it will be over-inclusive. Unfortunately, too many brief writers consider it the ending point as well. They dump this gross listing on the laps of appellate judges instead of performing the crucial next step…”
While clerking I kept track of the potential appellate issues as they happened. If there was a close call on an objection, I jotted it down. Similarly, if a witness or attorney said something that could create an appellate issue, I made a note of it.
When reviewing transcripts now, I make a note of anything that could even come close to an issue on appeal. I keep these notes in one big word document with references to where they are in the record. This makes it much easier to comb through my list later on.
The second step, as you probably guessed, is weeding out the issues that do not have a reasonable probability of prevailing in the appellate court. No other issues matter. Judge Aldisert explains that you should only raise “case-dispositive issues and arguments that may carry the day.” This means really trimming the fat off of your earlier list.
It’s often too easy, as the judge points out, to let emotions play a part in choosing the issues. This is especially true where you were the trial attorney. At trial, emotions get heated. You may even get angry at the judge or opposing counsel. But emotions have no place in choosing your issues. Only cold, hard, tactical reasoning should play a part.
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