Category Archives: What to Appeal?

Background on Stating Issues on Appeal

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This post is in a series on ways to frame the issues on appeal, and wraps up the discussion with a synopsis of South Carolina history.

Before 1990, parties taking an appeal had to file both exceptions to the trial court order and a statement of the questions involved. Exceptions required specificity:  “Each exception must contain a concise statement of one proposition of law or fact which [the appellate court] is asked to review . . ..” Supreme Court Rule 4, § 6 (repealed). The Court often dismissed appeals where the exceptions were not specific enough. See, e.g., Richards v. Port Glass & Mirror, Inc., 274 S.C. 558, 266 S.E.2d 67 (1980)(dismissing appeal where exception stated, “That the trial judge committed error in directing a verdict in favor of defendant-respondent.”).

In contrast, the statement of the questions involved had to be stated in the briefest and most general terms. Supreme Court Rule 8, § 2. The Court often dismissed appeals where the statement of the questions was so specific that they merely repeated the exceptions. See e.g., Diamond v. Powell, 271 S.C. 183, 246 S.E.2d 233 (1978).

The current rules do away with the old exceptions yet seem to incorporate their requirements. Like the former exceptions, each issue stated must be concise and direct. And general statements that were formerly required in the statement of questions may now be disregarded. Rule 208(b)(1)(B), SCACR.

Decisions construing the post-1990 rules show this preference for more specific issue statements. The Supreme Court has noted that every ground of appeal ought to be so distinctly stated that the reviewing court may — at once — see the point which it is called on to decide without having to grope in the dark. It may consider an issues stated less specifically if, and only if, the issue is reasonably clear from the arguments raised. Herron v. Century BMW, 395 S.C. 461, 466, 719 S.E.2d 640, 642-643 (2011).

Parties taking appeals in South Carolina may thus consider erring on the side of specificity.

And South Carolina respondents should consider submitting their own statement of the issues. Rule 208(b)(2), SCACR, allows Respondents to present their own statement of the issues if they are dissatisfied with the appellant’s statement.  Why pass up the opprotunity to frame the issues?

Any thoughts about drafting the issue statement? Please let me hear from you. You may reach me at www.attorneyroberthill.com. 

Framing Issues in Appellate Briefs

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The last post listed several ways to state an issues on appeal. This one discusses recommendations found in Wayne Schiess and Elana Einhorn, “Issue Statements: Different Kinds for Different Documents,” 50 Washburn Law Journal 341 (2011); and Judith D. Fischer, “Got Issues? An Empirical Study About Framing Them,” 6 JALWD 1 (2009).

The Schiess and Einhorn article advocates tailoring the form of the statement to the audience. For example, they suggest the multiple-sentence statement, that includes factual information, for intermediate appellate briefs that turn on applying settled law to the facts. For a state’s highest court, they advocate the single sentence, framed broadly and abstractly, because it focuses the court’s attention on a generally applicable question of law.

Fischer’s article has more specific recommendations:

  • use interrogatives and not “whether”
  • consider a factual introduction to the issues
  • refer to parties by their roles unless they have already been identified in the brief
  • include relevantly legal facts unless the question is a pure issue of law
  • make the issue answerable with a yes or no and not an either-or.

And what does the South Carolina Supreme Court think about all of this? The Justices are split on how they frame issues in their opinions. A review of this year’s decisions reveals that Chief Justice Toal is the only Justice who uses the one sentence “whether” formula.

Justices Pleicones and Hearn tend to favor the one sentence interrogatives that begin with did, does, or was. The South Carolina model form likewise uses the single sentence question beginning with “did.”

Justices Beatty and Kittredge did not include a separate issue statement in their current 2012 opinions. Akin to Bryan A. Garner’s “deep issue” approach, their opinions and the other Supreme Court opinions that lack a separate issue statement identified the issues in the opinion’s introduction by stating the parties’ positions.

What is the best issue statement that you have read? The worst? Please let me hear from you. You may reach me at www.attorneyroberthill.com.

Overview on Stating Issues on Appeal

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How do you state the issues that you want to raise on appeal? Rule 208, SCACR, grants the writer flexibility on this point. It says,”The statement shall be concise and direct as to each issue, and may be stated in question form. Broad general statements may be disregarded by the appellate court.”

Appellate PracticeChief Justice Toal advocates the Goldilocks approach. One should avoid issue statements that are so general that they do not tell the reader what he or she must decide, and those that are so excessively detailed that they are difficult to comprehend. Jean H. Toal, et. al., Appellate Practice in South Carolina (2d ed. 2002) at 210-211.

Where is the happy median? One way is to concisely work into the issue statement the type of order being appealed, some factual context, and the standard of review. Which statement is more helpful:

  • Did the trial court err in granting summary judgment?
  • Did the trial court err in granting summary judgment where the plaintiff presented evidence that the driver ran the red light?
  • Is testimony that the driver ran the red light the scintilla of evidence sufficient to defeat the summary-judgment order?

A familiar style in presenting this information is the one sentence statement beginning, “Whether . . . ..”  This form is criticized because it often contains awkwardly constructed subordinate clauses. Briefs that the Solicitor General’s Office filed this year in the United States Supreme Court avoid such awkwardness by introducing the “whether” issue with a brief paragraph on the facts. Beginning the single sentence with “Does,” “Did” or “Was” may also help clarify the issue and state it more concisely.

Another one sentence formula is “under-does-when.” The writer asks if under a certain rule, does a certain result follow when certain facts are present. The “under” clause states the major premise or rule, the “when” clause states the minor premise about the facts, and the middle “does” clause suggests the conclusion sought.

In contrast, Bryan Garner advocates a multi-sentence or “deep issue” approach. Under this approach, the issue statement begins with the rule or legal premise as a sentence, includes a second sentence on the minor premise or key facts, and ends with a conclusion cast in the form of a question. Garner explained this in his and Justice Scalia’s book, Making Your Case.

The next post discusses two articles on how to decide which form to use and how the Justices of the South Carolina Supreme Court frame their issue statements in their opinions.

How do you state your Statement of Issues? Please let me know at www.attorneyroberthill.com.

 

 

 

Appellate Briefs – How Many Issues?

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In South Carolina, the Statement of Issues on appeal immediately follows the Tables of Contents and Authorities. Rule 208(b)(1)(B), SCACR. An earlier post explained that the headings in the Table of Contents should already tell the reader what the issues are, what your position is, and explain how you reached it. This post discusses how many issues to raise.

Determining how many issues to raise falls into Goldilocks’s view about porridge that is too cold or too hot. The rule provides that the Court will ordinarily not consider an issue unless it is stated in the statement of the issues. Judges are just as critical, however, of raising too many issues.

Chief Justice Toal’s treatise counsels against loading the brief with an excessive number of issues. She and her co-authors liken it to an amateur enthusiast who fires a machine gun hoping to randomly hit something. Jean H. Toal, et. al., Appellate Practice in South Carolina (2d ed 2002) at 219. The treatise advises that there is typically little reason to exceed four issues. Id.

Jim Richardson, a premier South Carolina appellate advocate, advises to think hard before raising even four. He likens reversible error to a treasure that should be jealously and proudly unveiled when the audience has gathered and the lights come up.The rubies and diamonds may get lost if mixed with glass, no matter how pretty the glass may be.   

How to separate the diamonds from the glass? The Chief Justice’s treatise suggests that one first cull out the issues that were not preserved for review. Raising issues that were not preserved, the treatise notes, wastes both the attorney’s and the Court’s time.

After that cut, the treatise counsels the attorney to consider the standard of review. An earlier post explains that legal issues stand the best chance of success. Evidentiary issues, in contrast, are reviewed only for an abuse of discretion. And even then, the Court will not reverse unless the abuse of discretion was prejudicial. These additional hoops may counsel against raising evidentiary and other rulings reviewed for an abuse of discretion in with rulings that are reviewed de novo. Why dilute the court’s focus from the error that stands the best chance of success?

Has anyone else faced a 15 issue brief? Or battled co-counsel to drop a pet issue that he or she failed to preserve? Please let me hear from you. You can reach me at www.attorneyroberthill.com.