The posture of the case is implicit in the words “appellate” and “remand,” permitting you to delete “to the appellate court” and “to the trial court.” The phrase “should be aware of their recourse to” can be shortened to “can move for [a limited remand]” or “ can seek [a limited remand].”
I prefer “can move for” to the shorter “can seek” because it conveys more information. Litigants who do not normally practice in the appellate court might hesitate to use motion practice there.
Shorten “by the trial court” to “below” and improve the passive “will enable full resolution of the controversy by the appellate court” to the more active “will help the appellate court resolve the controversy fully.” Place “fully” in the position of emphasis at the end of the sentence because it is the essence of your point.
Delete “while the appeal is pending” as implicit and delete “particular [issue]” as unnecessary. For extra credit, change “ where consideration of an issue below will help” to “on the ground that consideration of an issue below will help” because one does not have to prove what will happen on remand to move for, or be granted, the remand.
The revised version:
Appellate litigants can move for a limited remand on the ground that consideration of an issue below will help the appellate court resolve the controversy fully.
Kenneth F. Oettle is a partner in and co-chairman of the appellate group and writing and mentor programs at Sills Cummis Epstein & Gross in Newark, N.J. He invites questions and suggestions for future columns to [email protected]. This article originally appeared in the New Jersey Law Journal, a Texas Lawyer affiliate. “Making Your Point” appears monthly in Texas Lawyer.
