Deciding which issues to appeal is a difficult but important part of appellate practice. Picking too many dooms an appeal from the start because it undermines the persuasive value of the one or two issues that might actually matter. As one longtime Minnesota Court of Appeals judge advised in a law review article:
All too often, lawyers throw every possible issue into an appellate argument, apparently in the hope that at least one will attract the attention of the court. But judges recognize weak arguments, which make for ponderous reading and a waste of time at oral argument. It is always better to make a thorough argument on one or two issues, than to make cursory arguments on five or six, or more.
The Sixth Circuit Court of Appeals put it more bluntly in a recent opinion: “When a party comes to us with nine grounds for reversing the district court, that usually means there are none.”
So how to pare down the list of possible appellate issues? Here are a few things you should keep in mind:
1. Was the issue preserved?
Generally, failure to raise an issue below results in waiver. Thus, preparation for appeal begins long before a case gets to the appellate court, often in the earliest stages of a case. (Click here for a quick read on preserving issues in the trial court).
2. What is the applicable standard of review?
In the Minnesota Court of Appeals’ comprehensive guide to standards of review in that court, the introduction notes that “[t]he standard of review defines the manner in which each issue is reviewed, delineates the boundaries of appellate argument, and often determines the outcome on appeal.” United States Supreme Court Justice Antonin Scalia and Bryan Garner likewise counsel careful attention to the standard of review in the selection of appellate issues: “Appealing a minor error that will be reviewed under an abuse-of-discretion standard will probably do nothing but divert time and attention from your stronger points.”
3. Was the error harmless?
The rules in federal court and Minnesota state court require the court to disregard errors or defects in the proceedings which do not affect the “substantial rights” of the parties. Can you explain how the trial court’s alleged error could have affected the result? If you can’t, don’t bother appealing on that issue.