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On Appeal: Winnow Out the Weaker Arguments

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  • Legalbear
    One of the first tests of a discriminating advocate is to select the question, or questions, that he will present orally. Legal contentions, like the
    Message 1 of 1 , May 5, 2013
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      "One of the first tests of a discriminating advocate is to select the question, or questions, that he will

      present orally. Legal contentions, like the currency, depreciate through over-issue. The mind of an appellate

      judge is habitually receptive to the suggestion that a lower court committed an error. But receptiveness

      declines as the number of assigned errors increases. Multiplicity hints at lack of confidence in any one. . . . [

      Experience] on the bench convinces me that multiplying assignments of error will dilute and weaken a good

      case and will not save a bad one." Jackson, Advocacy Before the United States Supreme Court, 25 Temple

      L. Q. 115, 119 (1951).

       

      "Most cases present only one, two, or three significant questions . . . . Usually, . . . if you cannot win

      on a few major points, the others are not likely to help, and to attempt to deal with a great many in the

      limited number of pages allowed for briefs will mean that none may receive adequate attention. The effect of

      adding weak arguments will be to dilute the force of the stronger ones." R. Stern, Appellate Practice in the

      United States 266 (1981).

       

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