Today's DJ has Justice Hoffstadt's gift to all practitioners (and to the "appellate community"), his column titled Bah Humbug, which is chock-full of excellent advice.
When deciding what issues to raise on appeal, exercise judgment. They say there is no such thing as a dumb argument. “They” are wrong. A successful argument on appeal is a bit like a sniper’s shot: It is precisely aimed at the portion(s) of the trial court proceedings most likely to net you a reversal – that is, to the types of trial court rulings that are accorded the least deference on appeal and where the resulting error is most likely to be prejudicial. Limit the appeal to the best three to five such arguments.Where's the key issue? - Remember your audience. By the time a case is appealed, the parties and lawyers have been living with it for months, if not years. The appellate court has not, and is probably seeing the case for the first time. You wouldn’t start watching the Lord of the Rings trilogy by starting mid-way through The Return of the King
One simply does not raise that many issues! - It’s not called an “overlong,” it’s called a “brief.” The Rules of Court set a maximum word limit. ... If you raise three to five precisely aimed arguments, you should in most cases come nowhere near the maximum word limit.
- Be forthright. Do not try to hide, bury, or ignore law or facts that hurt your position on appeal. “Bad” facts and “bad” law have object permanence. Hiding them from us doesn’t make them go away, and we will find them.
- It ain’t therapy. ... We see a surprising number of briefs that level ad hominem attacks on the opposing party, opposing counsel, and the trial judge. Unless you are raising a claim of attorney disqualification or judicial bias, we don’t care.
Ad hominen? Let it go! - When it comes to giving good oral argument, keep in mind that oral argument is the last course in the meal you’re serving up, and the appellate court has already eaten and digested the main course of your brief(s). ... If you are the appellant, focus during oral argument on the two or three points you most want us to focus on. ... If you are the respondent, read the room. If the panel has given a tentative ruling in your favor or the tenor of the panel’s questions suggests the judges are leaning toward affirming, remember the Hippocratic Oath, and then do no harm to your case.
In the irresistible pun department, note that the standard of review in 4/1's unpub the other day in In re Dinovo is ... abuse of discretion! And for another great opening to an opinion, see this one from Beds.
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