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11 August 2007


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Greg May

I think an appellant has to have one, two, maybe three big reasons the lower court was wrong. There are exceptions, but for most cases, any more than that seems desperate.

A colleague of mine once said that you should approach an appeal as if the judges on the appellate court are lazy. They're not, of course, but act as if they are. That forces you to limit your brief to the most important arguments, write succinctly, and not get bogged down in a detailed, complex argument unless you can make it compelling.

In my opinion, though, it seems far less dangerous to "kitchen sink" the brief for respondent/appellee. I think the more reasons the court has to affirm, the better, and such reasons are rarely weak.

This approach also stems from something I learned from a colleague (who is also a former justice of the California Court of Appeal). He said that the court will generally try to look for a reason to affirm without reaching the merits. Only if there is no way to do that will it address issues on the merits. So I look for every one of those I can find. Sometimes, even the kitchen sink is a good argument.

I'll give this dichotomy some further thought after I read these articles.

I think McElhaney makes a good point that the habit of exhausting all the issues is a carry over from law school.

Greg May

When I was a very young lawyer, a partner insisted that I include an argument in a summary judgment motion that relied on a multiple hearsay declaration (double or triple hearsay, I can't remember which), among other arguments that I wanted to ditch. I kept telling her we shouldn't do it but, being the partner, she won that battle.

The motion was denied. I'm not saying it would have been granted if she listed to me, but . . . come on, an argument that relies on a multiple hearsay declaration? What do you call the item that you throw in after you throw in the kitchen sink?

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