Good References are Simply Not Enough

Here is a dilemma to which most appellate attorneys can relate: You have a complicated appeal tied to a voluminous record with numerous issues that are ripe for appellate consideration. Of course, the lower court briefing on those issues comprises hundreds of pages, and the trial court’s decision—itself spanning scores of pages—is far longer than your appellate brief can be. So how in the world can you present all the necessary arguments in a brief with a strictly enforced word limit?

As a seasoned practitioner, no doubt the first thing you do is limit your issues to those that are most important—i.e., most likely to win—while identifying those that, while important to your client, probably won’t carry the day. Kudos to you; most appellate experts agree that less is more when it comes to presenting issues on appeal. For a good article on that point, read Adam M. Samaha, Looking Over a Crowd – Do More Interpretive Sources Mean more Discretion?, 92 N.Y.U. L. Rev. 554, 603-04 (2017) (“More issues correlate with a falling chance of a vote to reverse and at a high level of statistical significance”).

Various appellate courts and other commentators have echoed that sentiment. In Pierce v. Visteon Corp., the Seventh Circuit rebuked one lawyer for presenting 13 issues for decision, noting he had “violat[ed] the principle that appellate counsel must concentrate attention on the best issues.” 791 F.3d 782 (7th Cir. 2015) (“To brief more than three or four issues not only diverts the judges’ attention but also means that none of the issues will be addressed in the necessary depth; an appellate brief covering 13 issues can spend only a few pages on each.”). See also Fifth Third Mortg. Co. v. Chi. Title Ins. Co., 692 F.3d 507, 509 (6th Cir. 2012) (“When a party comes to us with nine grounds for reversing the district court, that usually means there are none.”); Marshall Houts and Walter Rogosheske, Art of Advocacy: Appeals (Eric Magnuson and Hon. Diane Bratvold, 2017 eds.) (“Raising any more than three or four issues on appeal gives the appearance of shotgunning. In the appellate courts, this approach usually disserves the client for several reasons.”)

You, unlike those other attorneys, are no fool, and you listen to these persuasive admonitions. But even though you have narrowed your list of issues, there are still too many to cover in 14,000 words or less. And you are aware of the many decisions in which appellate courts have said issues that are presented without discussion and legal support are waived. In fact, in May 2018, the Minnesota Supreme Court took that very stance, deeming waived an argument that was referenced in briefing and at oral argument, but for which the appellee failed to “provide any analysis or cite to legal authority to support th[e] claim.” See Christie v. Estate of Christie, 911 N.W.2d 833, 837 N. 4 (Minn. 2018). So, whatever is to be done?

Undeterred, you go even further, whittling down your list of issues to the bare minimum. Finally, you stand ready with the prescribed three or four issues (or something close—certainly less than nine) to raise in your appellate brief. And yet, despite ruthless elimination, you still have too many issues to cover in the allotted number of words.

And then you are struck by inspiration—a brilliant insight, really—simply refer the appellate court to your excellent trial court briefs, where you discussed each issue in sufficient detail to make a compelling case. Slapping yourself on the back, elated by your Solomon-like wisdom, you think, “Problem solved.” Time for a drink, right?

Wrong. You are in for a rude awakening if you follow that course. “Judges are not like pigs, hunting for truffles buried in briefs.” United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991). In other words, appellate judges do not take kindly to treasure hunts, including searching for answers in briefs that contain only references to other briefs. Even references to an attached appendix can be irritating. But appellate judges have absolutely no tolerance—none at all—when they are told to go read another brief to find the answer to the questions that will govern their analysis. No, appellate judges (and their clerks!) want everything to be in the brief they are reading, at the time they are reading it.

And that desire is not some transient fancy that will come and go like bellbottoms or muttonchop sideburns. No, friends, appellate judges’ craving for easily-accessible information—to have everything relevant and necessary for their decisions in one place—is here to stay. As such, many appellate courts have rules that specifically prohibit incorporating arguments by reference. In the 8th Circuit, for example, it is against the rules to “incorporate by reference the contents of a brief filed elsewhere.” 8th Cir. Local Rules 28A(j) (updated Dec. 1, 2016). Although Minnesota has no corresponding state rule, Minnesota courts often follow their federal counterparts on open questions, and the Minnesota Supreme Court’s decision in Christie is a fairly clear indication of where the court would land on references to lower court briefing (the justices will not approve).

Not so long ago, this trend against referencing trial briefs led to an unfortunate result for one unwary practitioner. In Papp v. Fore-Kast Sales Co., the lawyer for Papp attempted to raise, by reference in a footnote, an “issue of timeliness, which was fully briefed by both parties below.” 842 F.3d 805, 815 (3d Cir. 2016). The Third Circuit noted that “[t]he only sense in which Papp makes an argument at all is by reference to what he said somewhere else, trying to incorporate arguments he made before the District Court.” The court did not like that, not one bit. “To permit parties to present arguments in that fashion,” the court declared, “would effectively nullify the page or word limits imposed by the appellate and local rules. That cannot be permitted.”

Papp’s lawyer might have been helped if there were other parties on his side of the appeal. Under Federal Rule of Appellate Procedure 28(i), where there are more than one appellant or appellee, “any number of appellants or appellees may join in a brief, and any party may adopt by reference a part of another’s brief. Parties may also join in reply briefs.” That would be one situation where a reference to another brief would work for the appellate court and the lawyer who has too many things to say for one brief. But that exception is a narrow one.

Now that you are aware of the problem, here are a few suggestions to avoid the associated pitfalls. In most circumstances, the first—and most obvious—solution is to double down on the received wisdom of the appellate bar: Do not agonize over how to get your lesser arguments into your brief—just leave them out. Under no circumstances should you reference a lower court brief in order to present weak, tired arguments to the appellate court. In addition, be sure that your writing is as lean as possible. Cut the fat. Be Ernest Hemingway. Your briefs will be better and your clients more successful. And—just maybe—the judges (and their clerks!) will like you more.

Reprinted with permission of Minnesota Lawyer ©2018