5.2. How to Find Stories and Issues

• Jurisdiction: United States
• Publication year: 2021

5.2. HOW TO FIND STORIES AND ISSUES

You have read the record and either abstracted or digested it. You have an impression of the probable main story of the record, but you have resisted allowing your System 2 mind to ossify that impression as the sole story of the case. You have many other impressions, perhaps visualizations of testimony, scenes, and witness credibility. It is best if these smaller impressions have not ossified as opinions. You also have impressions whether the court applied correct law to the substance and followed correct procedure in reaching the reviewable decisions that underlie the appealable judgment or order. Again, you have been suppressing firm opinions.

5.2.1. Use an Every-Case Questioning Process to Make the Record Speak

The appellate lawyer should identify issues no matter how adamantly other lawyers proclaim what the issues are. The in-house lawyers, transactional lawyers, and trial lawyers are often right in declaring the issues are exactly A and B, and no others. But they wear the blinders of long involvement in the case, and they can fail to spot issues they did not intentionally press or counter.

Identifying issues requires a sense of the applicable law, whether substantive or procedural. At this stage, core principles suffice. You may need to know the basic dimensions of specific doctrines. But do not let the law run away with the facts at this stage. It's more important to understand the moral foundations that animate the basic rules than it is to parse dogma. If a team member presents a draft law review piece about an apparent issue, be grateful but skim it. If you're doing your own research, stop for now with the cases, statutes, and rules that define the field. A strong treatise may be all you need.

With a generalist's knowledge of applicable substantive law, you are ready to query the record for issues. This process has a structure that brings to bear the appellate lawyer's knowledge of the two-system mind, moral foundations, and how stories work. Although it frames what we call legal issues, it is not a primarily legal exercise. Here is a comprehensive way of looking at the structure; for convenience, it is phrased from an appellant's point of view.

Issues of the correct outcome as a whole

• Does it feel like the whole case came out right or wrong?
• What are the three to five most important facts behind my overall comfort or discomfort with the result?
• What are the moral foundations beneath my comfort or discomfort?
• What are the moral foundations of the law involved? Are the moral foundations of my impressions congruent or discordant with those of the law?
• In its rulings undergirding the decision or shaping the case for the jury, did the trial court appear to make a mistake or apply law that should be different?
• Did my client's trial counsel complain about the mistake or adverse law, or was doing so excused?
• Did the court's action probably hurt my client? How?
• What story can I tell as the base for arguing prejudicial preserved error in the outcome as a whole? Does the story appear to be internally coherent? Are the moral foundations of the law and the story compatible?
• What will the appellate court do if it finds prejudicial preserved error, and will that remedy serve a client goal?

Issues of orders and aspects

• Are things about specific judicial rulings, or about the judgment or order other than whether it favors the right side overall, that cause discomfort? For

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