Mayer Brown’s Federal Appellate Practice has a useful checklist of questions to ask when evaluating potential issues for appeal:
- Was the issue properly preserved with an objection or timely argument below? If not, you’ll likely be facing the plain-error standard in federal court, or the ends-of-justice exception in state court.
- Did the mistake materially affect the outcome below? Harmless error won’t get a judgment reversed in state or federal court.
- Is the relevant issue already settled in your circuit? Most circuits won’t let a 3-judge panel overrule a prior panel’s ruling.
- Can you satisfy the standard of review? Pretty self explanatory. De novo is better than abuse of discretion is better than clearly erroneous.
- Do any of your potential issues overlap? This goes to credibility. Any court is going to take a brief asserting 1-3 appeal points more seriously than one saying that the trial court made a dozen outcome-determinative mistakes.
*At least the Second Edition, which I’m still using, does; the link takes you to the Third Edition.