11.3 CHOOSING ISSUES RESPONSIBLY
One of the first ways that advocates establish their credibility is by arguing only those issues — and cases — that are worthy of argument. Most law students cannot choose which issues to argue, but they can choose how many arguments to make.
Soon, they will be choosing the issues, as well as deciding whether a case or a motion is worth filing or whether an appeal is worth pursuing. You should appeal any case and make any argument that has a credible chance of a positive result, but use good judgment when making those decisions, and remember the busy courts to whom you are arguing. A marginal argument weakens the advocate’s present and future credibility; a brief that addresses fewer issues argued well is better than a brief with many issues argued poorly.Judge Patricia Wald, of the United States Court of Appeals for the District of Columbia Circuit, notes: “Confident counsel should almost always go for broke and rely on their one or two best arguments, abandoning the other 9-10 wish-list entries.... The fewer arguments you make the more attention they will get from us in preparing and disposing of your case.”8Judge Pierce notes that trial judges make “relatively few mistakes” and that a brief that asserts a half-dozen or more key points of error may “needlessly divert” the judge’s attention from the more compelling grounds, with the result that the court’s ability to recognize the validity of any one of the grounds “decreases significantly.”9Similarly, the late Chief Justice Burger noted that “a brief that raises every colorable issue runs the risk of burying good arguments.”10 Judge Wiener advises that counsel should “[d]ecide which legal arguments are key to resolving the issues of the case in your client’s favor,” and should “[f]orce” themselves to “omit fringe issues and far-out theories; they will only dull the thrust of your appeal and obscure the potentially winning points.”11Finally, Judge Parker notes that you do a disservice to your client when you raise too many issues on appeal, noting that if you raise 20 issues and give them all “equal [time] — and therefore, shortshrift,” you may fail to convince the court that the district court “committed just one error which justifies some relief for your client.”12
Thus, when choosing issues and arguments, restrict your brief to those that are best supported by both the law and the facts. Not every error is worthy of appeal, or even of argument.
Before arguing about an error in the trial court, identify a causal link between the error and the court’s judgment against your client; without that link, the error is irrelevant. Before filing a motion, identify a valid purpose for that motion. While you may sometimes file a motion as a method of narrowing issues rather than in a bona fide attempt to dispose of the whole case, be sure that you are not wasting the court’s time. Furthermore, remember that the validity of each individual argument has an impact on the whole brief. Every specious argument chips away at your overall credibility. When all the arguments are legitimate, on the other hand, the stock of the whole brief rises, along with that of counsel.