If you have read my prior articles, you should understand the importance of pinpointing the appellate issue and have seen a technique to hone the issue down. Now, I share with you some observations I have made over the years about appellate issues.

1. It is often a good idea to incorporate the scope of review into the appellate issue. For example: “The Trial Court abused it discretion in denying the Appellant’s Motion . . . because . . .”. By doing this, the appellate court, and your opponent, is reminded of the test(s) that must be employed to resolve the appeal.
2. Generally, counsel should feel fortunate to have even one or two issues worthy of presenting to an appellate court. That is not to say, however, that there is a magic number of issues that one should advance and no more. One judge, on the District Court of Appeal, Fourth District, recently estimated the maximum number of issues presented to be between three and five. However, all things considered, I suggest that the final number of issues that should be submitted will depend on each of their strengths and your appellate strategy. Determining that number is a judgment call that is based on experience, intuition, and confidence. One thing is for sure though regarding the number of issues that you ultimately submit – the “shotgun approach” is repugnant to the court. Appellate judges on both sides of the Pacific frown upon submitting several issues for consideration, in hope that one of them might attract the court’s attention. Judges from the United States, New Zealand and England that I have talked with unanimously agree that this not only causes the court needless expenditure of time (if the judges chose to read beyond the statement of issues), but it also engenders their resentment towards the proponent of the shotgun approach. Moreover, submitting weak issues:
   1. distracts the court’s attention from stronger ones,
   2. may confuse the court,
   3. and certainly damages the advocate’s credibility.
3. Often the initial assessment of the issue or issues will change while drafting the brief. Also, as the written argument develops, it is not unusual for the issue or issues to change. Sometimes the drafter may decide to merge two or more issues. Other times, he or she will completely abandon an issue after it becomes apparent that it is not as strong as first believed, or that including it would only distract from the thrust of the other issue or issues.
4. The final issue or issues counsel advances in the brief should be no longer than one sentence, easily understood on first reading and hopefully one that can be answered only by the answer counsel provides. After reading the issue, the reader should have a complete understanding of the question that he or she must resolve. If the issue accomplishes this, it will be a natural “lead in” to the supporting written argument.
5. In oral argument, issues should also be used as a basis to build upon. A learned New Zealand Justice affirmed this point as follows: “The first point in counsel’s oral submission, yet again, is to move directly to the question in issue. . . . My preferred format for oral argument is for counsel to identify and crystallize the issue; next [to] state the conclusion contended for and then to list and deal with the reasons in support of that conclusion”. Another New Zealand Justice explained that he favors this technique because it assures him at the outset of the oral argument that he is on the “same page” as counsel during their argument. Appellate judges in Florida, that the writer has discussed this view with, have agreed with him.
6. Another benefit of a precisely drawn appellate issue during oral argument is that one can use it to keep the court, and an adversary, on the “path” that his or her issue has helped lay before them. This “path” begins with the issue the counsel has posed, the answer, and then the facts and logic that support it. If either the court or the opponent travels from the “path” during oral argument, counsel’s job is to gently, but compellingly, bring the court back to it. This process reminds one of a shepherd guiding stray sheep back to the trail. Through techniques that can accomplish this, one is in effect “controlling” the course of the argument.
7. When representing the appellee, please do not fall into the trap of perfunctorily assuming that the appellant’s issue or issues, in either its written or oral submissions, are correct. After all, they are not carved in stone. If, on analysis, they prove to be incorrect and do not truly pose the ultimate question that the court must resolve, you must alert the court of this as soon as possible. Then, the court must be made to understand that your issue, and not your opponent’s, is the correct one. In a brief, it usually takes no more than a short paragraph to explain why the opposition’s issue is irrelevant to the appeal. In oral argument, usually this should be done at the outset.