Appeals Are Not a Game of 20 Questions

In the past week,  I was part of a conversation in which colleagues were discussing potential responses to the opening brief expected from the appellant in a case in Colorado. If this case were in federal court, the notice of appeal would be filed in the district court that rendered the final judgment and say nothing about the case or the nature of the appeal.

In Colorado, the notice is filed in the court of appeals within 49 days after final judgment, includes a description of the case and an “advisory listing of issues.” The list serves to inform the court and other parties in order to focus attention on the anticipated subjects of the appeal. The use of the word “advisory” would strongly suggest that it is neither binding nor constricting. In fact, it appears that traditional boilerplate language in the notice “reserves the right to raise other issues.”

Yet, that does not always seem to be the case. In a 1995 decision, the Colorado Supreme Court discussed a notice of appeal that raised only two issues of three heavily contested issues. The missing issue on the notice involved exhaustion of remedies. In rebuking the court of appeals for reversing the judgment below on the exhaustion argument, the Supreme Court held that the issue was not “preserved for review” and had no choice but to reverse the decision.[1]

That ruling would seem to suggest that a kitchen sink approach to the advisory listing is necessary. Yet, ten months later, the court of appeals went back to that well and held that issues were nonetheless preserved for appeal without having been included in the notice of appeal.[2] The prevailing party invoked the Supreme Court’s decision from earlier in the year, but the court of appeals was “unpersuaded” that the Supreme Court made a full listing mandatory. It focused on the fact that the rule requiring the list’s inclusion in the notice labeled it “advisory,” that a three-year-old court of appeals precedent that did not make a full list mandatory had not been disavowed, and invoked a distinction based on its belief that the Supreme Court decision was based on a failure to raise the issue in the trial court.[3] Moreover, the Supreme Court denied review of that decision.

The upshot of this seemingly convoluted approach to notices of appeal is that the appellant in the case I discussed with colleagues listed 20 issues for review and invoked the court of appeals decision that allowed additional issues to be raised.

Regardless of the wisdom of a rule that opens the door to a long list of potential issues that can be either abandoned or enhanced, which seems to serve little purpose, asserting more than two or three issues makes little sense as a matter of appellate advocacy. A lengthier catalog of grievances suggests that the trial judge got nearly everything wrong, a view that courts will have difficulty crediting. Justice Robert Jackson, who was so impressive as Solicitor General that some justices thought he should have had the job for life, explained that 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.”[4]

Moreover, it is plainly a throwaway. Given word count limits, going forward with that list would seem to limit each argument to little more than a paragraph, hardly enough space to develop your case for reversal. Weaker arguments will undermine the force of stronger ones. Most courts view a failure to develop an argument much beyond listing it to be waiver of the issue. Finally, a long list suggests, at least at the notice stage (particularly after having seven weeks to consider it) that you still have no idea what grounds might constitute reversible error – and that dilutes your credibility as an appellate advocate.

[1] Vikman v. Int’l Bhd. of Elec. Workers, Loc. Union No. 1269, 889 P.2d 646, 659 (Colo. 1995).

[2] Giampapa v. Am. Fam. Mut. Ins. Co., 919 P.2d 838, 840 (Colo. App. 1995), disapproved on other grounds in later appeal, 64 P.3d 230 (Colo. 2003).

[3] Id. at 841.

[4] Robert H. Jackson, Advocacy Before the United States Supreme Court, 37 Cornell L.Q. 1, 5 (1951).