Appellants would be more than happy if you only briefed one argument.  Provided it won. Otherwise, chances are pretty good that they will believe that you ruined their chances of “justice” by failing to raise that winner point, the one you left on the table.

But try to cover them all and you can anticipate some snarky judge to write what Third Circuit Judge Aldisert did in United States v. Bansal :

We note at the outset that Bansal’s and Mullinix’s briefs raise approximately 75 issues for our consideration. Although the government responds by calling to our attention no fewer than 339 cases drawn from the span of more than 120 years (as well as 49 separate statutes and one book, for good measure), we reject any implication that we should pick up their torch and embark upon a similar adventure ourselves. We address only those issues we deem worthy of discussion, and only to the extent we deem necessary to explain our reasoning.

Ouch. And yet, it’s hardly out of the question that there are arguments to be made, points to be raised, that exceed what a judge cares to hear.  Yet again, there’s an element to Judge Aldisert’s admonition that smacks of the misguided notion that an advocates purpose is to please the judge’s sensibilities or not make them work too hard.

The reality is that few competent appellate lawyers would ever do such a thing.  Not necessarily because they couldn’t find 75 issues, but because their purpose is to serve their client and they know that shooting shotguns isn’t an effective tactic.  Think long and hard, pick your best points and make them stick.  Piss off the judges in the process and they will not be inclined to think favorably about your client.  Wrong, but real.

Don’t expect the defendant to be particularly understanding or sympathetic to the problem raised by limiting the arguments on appeal.  This is their world, their life, their sole focus.  Sitting in a cell, there is nothing more important than every excruciating detail of error being laid out at enormous length, beaten to death if necessary, so that the judges enjoy the full impact of the injustice.  It means everything to the defendant, and they think it should mean everything to the court. And to you.

Then there is the fine line one walks between spelling it out such that a third grader can grasp what went wrong, and offending the judges by treating them like third graders.  Frankly, judges ought not be offended, it being part of their job to tolerate reading law with which they are acutely familiar just to make sure something important isn’t missed.  The lawyers don’t quite know what you know, whether you’re on top of an issue or clueless about it.  If arguments are tedious, bear with us.  That’s why they pay you the big bucks.

I still bear the scars of being told by Judge Kimba Wood following my first minute of argument on a motion that she isn’t a first year law student and, being a federal judge and all, has a clue as to the basics of criminal law.  The day before, argument was made to another judge who I assumed, being a federal judge and all, had a firm grasp on the basics, and learned immediately afterward that I presumed way too much.

Do you take it for granted and risk losing the point by failing to provide the level of detail necessary to inform a judge, or do you provide the level of detail and risk offending the judge by suggesting that they need you to spell out first year criminal law to them? 

While it pays to research your judge beforehand, and if there is any question, reach out to someone who has greater familiarity for guidance, one can never be absolutely certain.  There’s a lot of law out there, and federal judges are generalists.  One can never be absolutely certain what they know at any given moment.

To some extent, the courts have brought such excesses upon themselves. By using lack of preservation as a handy excuse to squint and pretend the defendant’s rights were eviscerated, they invite an onslaught of obvious, yet painfully detailed, objections, arguments and motions.  It annoys the hell out of trial judges, by interfering with the flow of the trial, compelling the same ruling for the 27th time (because the one time you fail to make your full argument will be the one the appellate court relies on).

When it comes to appeal and, in the rare event of affirmance, a subsequent change in law (as happens once in a while), the failure to raise an argument will preclude a slam dunk reversal later.  These are the rules of the game courts have created, traps for the unwary lawyer.  So the wary lawyer is constrained to do things he would rather not do, merely to satisfy avoid the traps.  You hate it? Us too. But we don’t make the rules, and you are only too happy to remind us of our failings should be not satisfy them.

We would all do well to reduce the rhetoric, pare to the done the number of words murdered and impose harsh sanctions on the use of string cites for black letter law.  Rather the require a performance of the minuet would it hurt if a straightforward argument is made?  Must we note the 32 obvious variations on a theme that derive from the point, or drop a footnote for every audible burp raised by an issue?

That’s up to the courts.  Smack us for failing to turn a 10 page brief into an oversized one and you get an absurd monster.  We’re told you hate it. We’re told it’s unnecessary, even the basis of ridicule. Yet if we omit the brutal detail, you quick to point out the omission as if it’s a concession of failure.

Judges pick the poison, then force us to drink it. We do not have the right to take a risk that our client’s best argument is not made to the fullest, or to ignore a viable point that may come back to save his life.  Sorry if this is as annoying to you as it is to us, but you made the rules and we are constrained to play by them.

H/T Orin Kerr at  Volokh Conspiracy