Appellate Briefs – How Many Issues?

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 here.



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