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Lawyers are known more for caution than for courage. Better to raise every conceivable legal issue, we figure, than to focus on the one or two best arguments, because what if we’re wrong? And so we throw a slew of legal arguments into each appeal rather than try to pick one winner to ride to victory. Yet as courts continuously remind us, the shotgun approach to appellate advocacy can dilute the force of an appeal and hurt the credibility of counsel. In the words of U.S. Supreme Court Justice Robert Jackson, which Connecticut appellate judges love to quote, “[l]egal 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.” Okay, so we should be more selective in deciding which issues to raise on appeal. But how do we pick the winners? There is no formula, of course, but there are a few guidelines. The first is to figure out which standard of review applies to a particular issue. This is not always easy, but among standards of review, the Big Three are de novo review for legal rulings, abuse-of-discretion review for evidentiary rulings, and “clearly erroneous” review for factual findings. In general, the less deferential the standard of review, the better the appellant’s chance at securing a reversal. Thus, a good place to start searching for winning appellate arguments is among the trial court’s legal rulings — such as jury instructions or rulings dismissing portions of a complaint — which will face plenary review on appeal. Another place to look is in the recent decisions of the court that will decide the appeal. For example, in recent years, the Connecticut Supreme Court has repeatedly whacked prosecutors who crossed the line during closing argument to the jury, in one case invoking its “supervisory authority” to reverse a criminal conviction as a deterrent to prosecutorial misconduct even where that misconduct did not violate the defendant’s due process rights. So when appealing a criminal case in state court, take a close look at the prosecutor’s closing remarks for any missteps that might rise to the level of “deliberate” or “repeated” misconduct, as this issue has recently caught the court’s eye. By the same token, if a troll through Lexis turns up not a single decision reversing or remanding a case based on an issue you’ve identified, then you may want to think twice before adding it to your appeal. Another guideline for narrowing your appeal is to ask whether that whopper of an error made by the trial judge actually harmed your client at trial. Connecticut has an especially strict harmless error rule known as the general verdict rule, which presumes that a jury that returns a general verdict has decided every issue against the losing party. So that mangled jury charge the trial judge gave on the defendant’s laches defense is harmless error if the jury returned a general verdict against the plaintiff. Harmless errors do not make for winning appeals and should be winnowed out of appellate briefs. Similarly, you should consider dropping issues that were not raised in the trial court, because the general rule is that the appellate court will not consider such issues. True, there are narrow exceptions to this rule — such as the “plain error” doctrine for “extraordinary” situations that affect the “fairness and integrity” of the trial, and the Golding line of cases for certain claims asserting “clear” violations of fundamental constitutional rights. But while lawyers frequently invoke these exceptions, courts rarely sustain them. It is hard to convince a group of appellate judges that your case is genuinely “extraordinary” when they hear other lawyers use that word so frequently — sometimes to describe routine evidentiary rulings. Ultimately, the best approach is to select appellate issues that will grab the attention of judges who hear hundreds of losing legal arguments every year and who are generally reluctant to undo the work of their trial court colleagues. Recognizing that there are usually not more than one or two such issues even in a good case and having the fortitude to pare away the remaining issues will enhance your credibility with the court. Narrowing your appeal will also help your winning argument shine through the fog of lawyerly posturing that appellate judges must navigate in deciding cases. Michael P. Shea is an appellate attorney at Day, Berry & Howard. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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