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Picking Issues

I saw this post on FourthAmendment.com over the weekend. The synopsis, for people who don’t like clicking on links, is that a federal court in Nebraska discussed how a defense lawyer doesn’t have a constitutional duty to raise every non-frivolous issue on appeal. The court quoted the Supreme Court of the United States about how experienced advocates trim weaker arguments on appeal and focus on the best issue instead.

As far as the art of persuasion goes, it’s not bad advice. A shotgun-style approach is rarely the best way to approach trial advocacy. It dilutes the best points. It’s hiding a needle in a haystack for seekers who aren’t terribly inclined to search very hard and who don’t know they’re looking for a needle in the first place. It isn’t necessarily the best way to approach appellate advocacy either.

The problem is that the court’s good advice isn’t always so good. Like more or less everything in the law, there are exceptions. Concepts of the third plea being the best plea or a table-pounding defense lawyer getting dismissals die hard for a reason. Anything can happen, any time. Sometimes jailhouse urban legends come true for lucky defendants. Sometimes courts overturn longstanding precedents.

The law isn’t concrete. It’s constantly evolving on every level. In practice, the law is what the decider decides it is at any given moment, and what matters to the highest court in the country may not mean anything to a lower court judge. Relatively bright individuals can look at a something obvious in ways that may be anything but obvious to other relatively bright individuals.

The basis for the ruling in Miranda v. Arizona probably would’ve looked like a clear loser of an argument before the opinion came down. A warehouse full of crystal balls probably wouldn’t have made the winner in Erie Railroad Co. v. Tompkins obvious. One court’s clear loser may be a higher court’s landmark decision.

That’s a problem when a court disposes of an ineffective assistance claim based on an issue the lawyer didn’t raise. It’s easy for a court to label as a loser something that wasn’t taken all the way to the top. In front of one particular trial judge and one particular appellate court, it may seem clear. Put it in front of some different people and the outcome may be completely different.

Whether you’re the winner or the loser, things are rarely clear. If there’s an issue, and maybe even when it doesn’t look like there’s an issue, the merits of whatever the issue might be won’t be clear until every court that could have decided it has decided it.

When the system makes one court speculate about what other courts would’ve done about an issue they’ve never considered in order to determine a lawyer’s effectiveness, it hardly seems designed to create a fair result. How do we know if someone’s ineffective or not unless we know what would’ve happened? Our system isn’t consistent enough to provide proper guidance.

It seems to me it’s the system that’s ineffective.

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One Response to "Picking Issues"

  1. shg says:

    Picking issues is part of the package of sound discretion exercised by an attorney. The shotgun approach rarely works, but in the right case, before the right judges, and given the right circumstances, it may well be time to fight for a fundamental change in the law.

    It’s all about discretion.

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