There can hardly be any question about the importance of having the appellate advocate examine the record with a view to selectiing the most promising issues for review. This has assumed a greater importance in an era when oral argument is strictly limited in most courts -- often to as little as 15 minutes -- and when page limits on briefs are widely imposed. Even in a court that imposes no time or page limits, however, the new per se rule laid down by the Court of Appeals is contrary to all experience and logic. A brief that raises every colorable issue runs the risk of burying good arguments -- those that, in the words of the great advocate John W. Davis, "go for the jugular," Davis, The Argument of an Appeal, 26 A.B.A.J. 895, 897 (1940) -- in a verbal mound made up of strong and weak contentions.
Brennan replies to that in dissent by arguing,
The Court's opinion also seems to overstate somewhat the lawyer's role in an appeal. While excellent presentation of issues, especially at the briefing stage, certainly servers the client's best interests, I do not share the Court's implicit pessimism about appellate judges' ability to recognize a meritorious argument, even if it is made less elegantly or in fewer pages than the lawyer would have liked, and even if less meritorious arguments accompany it. If the quality of justice in this country really depended on nice graduations in lawyers' rhetorical skills, we could no longer call it "justice."
Whose argument is more on point? Of course, Brennan acknowledges the strength added to a strong argument. A brief that is written well, organized, and focused on the key issues. However, he realizes that in many cases such an argument is not practical. Will the court, be it Supreme Court or appellate or even a state supreme court, really recognize the brilliance of an argument that is buried within many silly arguments that a defendant wants included?
