The Argument You Don't Make

Every record worth appealing contains nine arguments. The brief that wins contains one — occasionally two — and the discipline of the difference is most of appellate practice.

Judges read hundreds of briefs a term. The brief that asks a court to hold nine things asks it, in truth, to hold nothing: attention divided is attention lost, and a panel that senses hedging senses weakness. The single proposition, stated in a sentence a judge can repeat to a colleague, is the entire craft.

Choosing it requires reading the record the way the founders of this firm read their first one — completely, and against oneself. The argument that survives that reading is rarely the one the trial team loved. It is the one the other side cannot answer without conceding something they need.

The eight arguments left in the drawer are not wasted. They are the reason the ninth sounds inevitable.