In his column entitled “Be More Direct Than The ‘Whether’ Man,” Dan Klau extolled the virtue of framing and stating the issues on appeal in a way that will advance your cause in the eyes of the judges reading your brief and deciding the case. On a related topic, I would offer this advice: Just because an argument can be made, doesn’t mean you should.
What I’m talking about here is developing the ability to engage in an orderly process of issue selection-one that will help, rather than hinder, your client’s cause on appeal. In other words, how to separate the wheat from the chaff and how to deep-six those arguments that are undeserving of the light of day.
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