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Eh Nonymous


Your comment about "why preserve the argument, if it's weak" points up one of the (many) problems with litigation strategy.

If not preserved, then waived. I had this point pounded into me in law school; hopefully, the result will be that I do not forget it during trial or at the close of evidence. Fail to preserve the objection, and renew it, and you have lost any hope of prevailing upon it later, unless it is manifest glaring error.

But, preserve everything, and you don't just look unprofessional: you can lose. See Howard Bashman's appellate litigation columns, some of which you have previously featured. Recently, a party lost their appeal - lost it entirely - by trying to raise too many issues, in a wandering and incoherent brief that probably did far too much, and not at all well. I also like his advice, here: Ten Tips for Excellence in Appellate Advocacy.

That would include "#3: Raise and argue the right issues and the right number of issues." Well, sometimes it's not obvious what those are, either of them.

I remember some bittersweet moments in law school, when I learned that clear error had occurred (but not grave, constitutional, reach-out-and-save-it error) which, if preserved, would have allowed the losing party to instead prevail. But they didn't correctly predict which issue or issues would shift (sands are unpredictable, and much law is built on them) by the time the case finally reached appeal (or further appeal), because ... and this is obvious, but important:

Things Change. Pre-Enron, a claim of willful destruction of documents and intentional accounting shenanigans would sound like hysteria. Post-, even a weak claim, if it's got the right subject matter, suddenly gains sinister overtones, with a whisper of "Nigerian Barge deal" or "energy task force" or "widespread market manipulation to artificially create an energy scarcity, thereby driving up prices."

It's been said before, but I'll say it again: timing's everything.

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