In a civil trial with many issues, such as divorce which may have child support, custody, and property issues decided, a losing party may want to challenge every issue, such as a minimal difference or error in weekly child support to be paid. While there is no express appellate rule prohibiting or limiting the number of issues a party may raise on appeal, raising more than three or four issues on appeal is normally not prudent. This blog explores why limiting the number of issues raised on appeal is practical and prudent.
As a threshold matter, a party that raises numerous issues on appeal is taking a path inconsistent with normal appellate practice. Many appellate briefs only raise one issue. While not in the Appellate Rules, there are many unwritten rules in all professions. This is the case for appellate practice. While there are times raising several issues may be prudent, a brief loaded with many issues presents a “red flag” that the party is unreasonable or otherwise challenging the entire system or trying to “call out” the trial court below. This is because rarely does a judge improperly decide all of the issues in a case. Again, there may be sound reasons to deviate from this unwritten rule, and appellate attorneys do at times, but to the extent, you understand the true “practice” of appellate practice, the more likely you are to make prudent decisions with your appellate counsel on what issues to appeal.
Secondly, as a practical matter, each issue has to set forth the error allegedly made by the trial court under the relevant laws. This is followed by extensive analysis under the controlling standard of review. To make such an argument takes precise writing and a lot of time and words/pages. However, an Appellant’s Brief is limited to 14,000 words or thirty (30) pages,1 whichever is greater. Thus, each issue raised quickly reduces the available words or pages for remaining issues. There is simply no reason to raise an issue if it is not properly analyzed in the briefing as the Court of Appeals is likely to disregard an incomplete analysis; this is because a short legal analysis is typically not useful to show the error of the trial court claimed on appeal and is dismissed by the Court of Appeals as “not cogent” or “waived” for lack of proper analysis.2
Finally, as with most aspects of life, there is a financial cost to each issue added. Most appellate attorneys can narrow most briefs to two or three issues, discarding those issues less likely to win. While this may sound strange, some issues do not have enough value to justify spending the time and money to brief. Further, some issues, even issues where the litigants firmly believe the trial court incorrectly decided the matter, are given deferential treatment and are likely to be affirmed by the Court of Appeals. On the other hand, issues that involve the wrong application of the law are reviewed de novo3 and have a much higher probability of reversal. These are the best issues to appeal for most litigants, although in domestic cases some parents believe they must appeal even a weak case—their right to do so—to know they have done all they can for their children. Ultimately, a weak issue in a brief tends to make the other issues seem weaker too.
These are the unwritten rules of appellate practice that an informed potential appellant should understand to make the most of his or her appeal. The more you understand about the law, the more engaged you can be in making meaningful choices about your case and your future. This blog was written by appellate attorneys at Dixon & Moseley, P.C. who handle appeals of all types, criminal and civil, from all final orders from Indiana’s ninety-two (92) counties. This blog is written for general educational purposes only. It is not meant or to be construed as legal advice or a solicitation for services. It is an advertisement.