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Don’t Chase Every Rabbit

David Michael Eisenberg

Don’t Chase Every Rabbit
James Warwick via Getty Images

Years ago, I attended a litigation seminar taught by U.S. District Judge Herbert J. Stern, in which he hammered home a key point for effective advocacy: "Don't chase every rabbit." This advice has stuck with me over the years, and unfortunately, it seems to be ignored by far too many practitioners.

The concept is simple: When writing for or addressing the court, you should develop and emphasize your strongest arguments, and leave the marginal ones behind. Your appellate brief is not a law-school exam, where you get rewarded for "spotting" every issue, big or small. Nor are you filing an answer, where you've been trained to include in your litany of defenses anything that passes the red-face test.

Think of it this way. If, on appeal, you have two strong points, and are considering adding three others that may well come across as a stretch, what would you rather do? Rivet the panel’s attention on the issues that are likeliest to win your case? Or have the court scratching its head about those last few unpersuasive points and wondering if you may have thrown five issues against the courthouse wall, in the hope one or two of them may stick? If a judge is reading those throw-in points and saying to herself “oh, please,” you have not advanced your client’s cause. When you spend briefing pages or precious oral argument time on those weaker points, you only hurt your credibility.

We’ve all read some cases where an appellate court has said “appellant might have argued X, but the point was not raised on appeal and we therefore will not consider it.” Don’t sweat it, and have confidence in your ability to separate the wheat from the chaff.

At the court of appeals, argue to your strengths, and omit the little stuff.