If anyone has ever attended a CLE or presentation when appellate judges talk about the issues for appeal, a common refrain is that parties habitually include far too many issues on appeal. Notwithstanding these pronouncements, the message does not seem to be getting across. Now, however, that advice has been published in F.3d. Yesterday, in an opinion by Judge Kethledge in Fifth Third Mortgage Company v. Chicago Title Insurance Company, the Court opened the opinion with the following sentence: “When a party comes to us with nine grounds for reversing the district court, that usually means there are none.” This is a great reminder about the need to refine issues on appeal as the cornerstone of appellate advocacy. Often, lawyers as well as clients may feel aggrieved by a number of decisions by the court below. But including sundry issues for appeal weakens the strength of whatever the strongest arguments might be. A party is not realistically going to win on nine different issues. (Nor is a party likely to win on five independent issues). Therefore, narrowing the focus and pursuing only the most credible and supportable grounds is likely to maximize chances for achieving the desired result.
