Saturday, July 26, 2008

Issue Proliferation

Death penalty cases now crowding the California Supreme Court docket share two prominent characteristics: each loses and each alleges many reversible errors. Where a Supreme Court hearing is of right, these characteristics are related. When a case is weak, yet your continued existence depends on it, you raise every barely tenable issue. What choice do you have?

Also true, if your case is strong, raising many issues on appeal is a way to lose. Yet many attorneys with strong cases raise weak or trivial issues on appeal. One reason is the superficial logic of appellate process, allowing you to win if the court agrees on any ultimate issue. As follows from elementary probability theory, even small independent increments can substantially raise the probability of winning, where the increments are sufficiently many. The problem with applying this logic is that the issues seldom are close to independent, and a closer analysis would show critical shared assumptions that make almost certain that the less plausible theories depend on the plausible ones. Usually, the author can be reasonably certain that if his strongest theories fail, the weaker ones will, even where the weaker would succeed if the stronger had succeeded.

A future essay should provide an example of the interdependence of most cases' potential issues, but here I want to comment on other causes of issue proliferation. Once attorneys accept the banefulness of prolixity, they may still hunger for issue surfeit, and understanding this appetite's origin can help attorneys accept a reduced issue set. Issue proliferation arises from academic practices, pleading myths, and personal involvement. In law school, academic tests consist of issue-spotting exercises, in which the law student tries to recognize the issues the professor's template credits. Law school tests don’t penalize students for confabulation, and issues the professor credits include those judges would hold frivolous. This training creates lawyers who may be good at spotting issues but bad at evaluating their importance. Law students readily accept the message, because years of schooling condition belief that longer is better. Recall those assignments to write a term paper at least fifteen pages long. Pleading practice, the second source of bad habits, is gripped by the myth that a ponderous complaint intimidates defendants, promoting early settlement. Some lawyers apply to briefs the numerosity-favoring principle the pleading myth conveys. Finally, if the attorney is also the petitioner, rage increases behavioral excitation more than inhibition, leaving the attorney without perspective.

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