If you remember one thing from this article, let it be this: Less is more when it comes to assignments of error.

It may be tempting to include a long list of issues for your appeal, but doing so does not help your cause. Instead, keep your assignments of error to three or fewer (and preferably just one or two).

If you have too many, judges will not know which to take seriously. You lose credibility as an appellate advocate and judges (and their law clerks!) lose focus with unnecessary length. 

So how do you decide which issues to raise on appeal?

1. Make a list of potential issues when you review your case’s record;
2. Order your issues from best to worst;
3. Select your top 2 or 3 issues.

Sometime it is easy to determine which issues are the best issues, but not always—especially for trial lawyers who are deeply invested in the proceedings. And trust me, I understand as a former trial attorney.

Try taking a step back. Consider the following factors:

• The standard of review.

Pay attention to the standard of review. An appellant is going to have an easier time with a de novo standard of review than with an abuse of discretion standard.

• The strength of your argument.

You should, of course, also impartially evaluate how strong your argument is that the lower court was wrong. Are you clearly right? Great! But that’s not the only factor.

• …Is any error harmless?

Think through whether any error is likely going to be deemed “harmless error.” Appellate courts examine whether alleged error is harmless and routinely avoid reaching the merits in those situations (they are, in fact, required to decide if error is harmless!). This can be frustrating for trial lawyers who work so hard to preserve an issue that they feel passionately about, but it is a reality to keep in mind.

• Does the issue help your credibility or hurt it?

If you are still stumped when you’ve finalized your list of issues, consider what your brief would look like.

Some attorneys believe you should lead on brief with the issues that win you a reversal. I believe that you should begin with your strongest issues generally. If one of your goals on brief is to establish credibility with the court, having too many issues is going to undermine that credibility. Leading strong—and finishing strong—is important.

• Get impartial feedback.

If you are still struggling to narrow down your list of issues, seek an unbiased opinion from a colleague or appellate specialist who isn’t as in the weeds as you are. I routinely provide appellate consulting for attorneys who want a second set of eyes and ears when designating assignments of error.

What if you’ve previously included too many assignments of error and are now writing your brief?

It isn’t too late! You are allowed to drop issues. An appellate court will view any issues not briefed as having been waived–but that is okay because you will have thoughtfully considered what your best issues are and you will be focused solely on those.

Do not feel compelled to write a brief with 7 assignments of error just because you included them in your Va. Sup. Ct. R. 5A:25 Statement of Assignments of Error. If you previously designated them, though, you should acknowledge in your brief that you are intentionally excluding those assignments of error.

Need help writing your assignments of error?

That’s a blog post for another day. And on that note–Happy Thanksgiving!