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Mon, 2 Oct 2006 12:12:56 EDT 

Commentary: How Many Issues Should You Raise on Appeal?

Howard J. Bashman
Special to Law.com
10-02-2006

One of the most rudimentary pieces of advice an experienced appellate lawyer can provide is that it is a mistake to raise too many issues on appeal. As an appellate lawyer myself, I regularly get involved in cases when they are leaving the arena of the trial court and heading to the appellate court level. One of my first priorities is to determine what issues are available to be raised on appeal and which of those are the strongest.

In the course of attempting to figure out which issues ought to be raised on appeal, I commonly seek and receive input from the lawyer who was principally responsible for the case in the trial court. Typically, that lawyer will have a laundry list of grievances ranging from "the trial judge was unfair" to every last instance manifesting the purported unfairness. Unfortunately, it's one thing to proclaim that raising too many issues on appeal is bad, but it's quite another to determine exactly what that means and how the advice should be implemented in a given case. In an ordinary appeal from a trial court to an intermediate appellate court, it's best to raise four issues or fewer -- and one should attempt, if at all possible, to avoid raising more than six issues.

When seeking discretionary appellate review in a court of last resort, such as the U.S. Supreme Court or a state's highest court, it's preferable to raise just one or two issues -- and no more than three issues should be raised unless absolutely necessary. Because the odds are squarely against any given case qualifying for discretionary review in a court of last resort, the possibility that a single case might raise three or more separate issues meriting discretionary high court review is highly improbable.

Of course, the number of issues to be raised on appeal is not a decision that can be made in a vacuum. The number of issues to be raised on appeal depends on what the case is about, how many different rulings or orders are at issue in the appeal, and the grounds on which those rulings or orders will be challenged on appeal.

The most effective issues are stated in a way that provides the reviewing court with an understanding of why the issue must be resolved in favor of the party taking the appeal. An example of a poorly phrased issue is "whether the trial court's grant of summary judgment should be reversed." All that issue tells the reviewing court is the procedural posture of the case below and the standard of review that will apply on appeal. But the issue, as phrased, tells the reviewing court nothing about why the challenged decision was wrong and should be reversed. It would be much more effective to frame the issue to say "Should the trial court's grant of summary judgment based on plaintiff's failure to prove intent be reversed because intent is not an element plaintiff must prove under this court's ruling in X versus Y?"

At the same time, an appropriate desire to keep the number of issues as low as possible often militates against providing a comprehensive list of reasons for reversal in the questions presented. For example, imagine a case in which the defendant has appealed to challenge the jury's award of punitive damages as unconstitutionally excessive. In the defendant's appellate brief, the defendant may intend to argue that the punitive damages award was unconstitutional for various reasons: The punitive award is too great a multiple of the compensatory award; the punitive award is too large given the relatively low outrageousness of defendant's conduct; and the punitive award is too large because it is based on conduct by the defendant that is not properly subject to being punished in the context of this case.

Those three reasons for reversing the jury's award of punitive damages could be set forth as three separate issues in the Brief for Appellant's statement of issues. But, if the Brief for Appellant already raises a number of other issues, having three more issues on the subject of punitive damages may put the total number of issues above the preferred maximum. If so, it would presumably be acceptable to raise the punitive damages argument via a single issue: "Was the jury's award of punitive damages unconstitutionally excessive?"

What brings to mind the subject of how many issues should be raised is an order that the Supreme Court of Pennsylvania recently issued granting review in a case in which the court-specified question presented is: "Did Appellant waive her right to appellate review by raising a quantity of issues sufficient to impair meaningful appellate review?"

When a case is appealed in the Pennsylvania state court system from a trial court to either of the state's two intermediate appellate courts, a rule of appellate procedure requires the trial judge to specify where in the record the trial court's reasons in support of the rulings challenged on appeal can be found. And if those reasons do not yet exist in the record, the trial judge must issue a post-appeal opinion setting forth those reasons.

To assist the trial judge in determining whether the record contains a sufficient statement of reasons -- and, if not, what reasons need to be offered in any supplemental post-appeal opinion, the Pennsylvania Rules of Appellate Procedure authorize the trial judge to direct counsel for the appellant to file a Statement of Matters to be Complained of on Appeal. Unfortunately, sometimes attorneys have used the Statement as a means of cataloguing an exhaustive list of supposed errors to, if nothing else, inflict back on the trial judge a little bit of the pain the losing attorney experienced in receiving an unfavorable outcome.

In December 2004, in the now infamous case of Kanter v. Epstein, the Superior Court of Pennsylvania ruled that appellants who raised a total of 104 issues in their Statement filed with the trial court judge had failed to preserve for appellate review any issues whatsoever. And this was the result on appeal even though the trial court had issued an 85-page opinion addressing those issues, and the appellants had winnowed down their complaints to a mere 11 issues by the time they filed their Briefs for Appellants on appeal.

It seems to me that the Pennsylvania Supreme Court -- in recently granting review in a case where that court itself framed the question presented as "Did Appellant waive her right to appellate review by raising a quantity of issues sufficient to impair meaningful appellate review?" -- has already indicated how the court plans to rule.

Perhaps the question as phrased allows the party opposing waiver to contend that just because the quantity of issues raised was sufficient to impair meaningful appellate review, it does not mean that the quantity in fact succeeded in impairing meaningful appellate review. Perhaps the party opposing waiver could argue that it nevertheless retained an ability to receive non-meaningful appellate review, instead of no appellate review whatsoever. Or, consider the related argument that the mere impairment of appellate review is no reason to preclude it entirely.

The problem with raising too many issues on appeal is that the meritorious issues tend to become lost among the non-meritorious issues. If an appellate court recognizes that the appellant has raised one valid issue necessitating reversal and 103 other frivolous issues not necessitating reversal, I believe that the appellate court should nevertheless order reversal based on the lone meritorious issue. But if that lone meritorious issue is buried underneath an avalanche of frivolous issues, the appealing party has assumed the risk that the appellate court will never find it, in which case affirmance will of necessity result.

The punishment for raising too many issues on appeal should be limited to the consequences that in fact flow from raising too many issues on appeal: The meritorious issues, if any, may not be spotted by the appellate court, and the briefing of the meritorious issues may be so perfunctory as to fail to preserve even those issues for appellate review. But I don't believe that just because some attorney is foolish enough to identify 104 issues on appeal, that means the appeal must be denied, if the case, for example, involves a challenge to a death sentence and the appellate court recognizes that one of the 104 issues should spare the prisoner's life.

Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., a suburb of Philadelphia. He can be reached via e-mail at hjb@hjbashman.com. You can access his appellate Web log at http://howappealing.law.com/.