"When a Party Comes to Us with Nine Grounds for Reversing the [Trial] Court, That Usually Means There Are None"

Wise advice to lawyers from Judge Raymond Kethledge in Fifth Third Mortg. Co. v. Chicago Title Ins. Co. (6th Cir. 2012).

Comments

[wvattorney13]

I agree with this. Judges are willing to believe that another judge erred. But when you say that there were 9 separate errors then you've just flipped the script and made the appellate court look at you (and your client) with skepticism.

The problem is that you have clients pushing for the kitchen sink. They read a case and demand that you include their grounds in the appeal because it is their "only shot." I tell them no. That causes fights.

[Sisu]

Title insurers are worthless; perpetrating scam. I doubt they even have the reserves necessary should a pervasive scam be perpetrated by corruption of government systems.

The limit on title insurance should not exceed the value of the security interest.

[TextFirst]

I've often wondered about various forms of catastrophic insurance like that. Supposedly Fidelity and the other big brokerages has an insurance policy that will pay out if they're insolvent and SPIA coverage isn't enough to make shareholders whole. In the event of such a calamity, I'm skeptical that whoever issued that policy would *actually* be able to pay out...

[Area Man]

This is so true. I’ve heard many appellate judges say that three or less is ideal. Up to five if the case was very long and complex, but it’s still ill advised. (Death-penalty cases are an exception. But even they should have a reasonable number.)

[TextFirst]

Especially when as here being reviewed on an abuse of discretion standard. Those are generally hard to win for obvious reasons, now imagine trying to argue with a straight face that the court abused its discretion NINE TIMES.

[Brett Bellmore]

As a logical matter, once you've accepted that the court abused its discretion once, this should lower, not raise, the threshold for thinking it abused its discretion in multiple ways.

You've already accepted that it's an discretion abusing court! Why would a discretion abusing court stop at one abuse?

I don't think this is driven by logic. Rather, judges as a group are disinclined to think that other judges are actually bad. Incompetent? Maybe? Occasionally making mistakes? Sure.

But the idea that another judge might be deliberately making mistakes is one they don't want to entertain. They want to think abuse of discretion is just an out of the blue mistake.

And if abuse of discretion isn't driven by the abusing judge's personal nature, then abuses are just random errors, and independent rather than correlated. And you WOULD logically doubt a long list of abuses, because the odds would be mounting against it being true.

[Bruce Hayden]

What do you do then when there are nine (or even more) good grounds for reversal? Pick the best ones ? Yesterday, Reason published an article by Jacob Sullum about the NY v Trump criminal case, and linked to the Defendant’s appeal brief, which, all told, probably included at least nine grounds for reversal. All were substantial. None were anywhere near frivolous.

https://reason.com/2025/10/28/trumps-appeal-of-his-new-york-convictions-highlights-the-absurdity-of-alvin-braggs-convoluted-case
https://reason.com/wp-content/uploads/2025/10/Trump-criminal-appeal-10-27-25.pdf

Here is another theory. When the Defendant includes that many substantial grounds for reversal, they can make affirmation very laborious and difficult. They only have to accept one ground for reversal, but have to individually address and eject each and every one provided by Defendants to affirm. Compounding this, failure to assert a grounds for reversal typically waives it for further appeal. Also relevant here, this verdict WILL be reversed, at some point, either by the higher NY appeals court, or the US Supreme Court, with a 6-3 Republican majority (3 nominated by the Defendant Trump).

[wvattorney13]

It looks like there are 5 assignments. One is a sufficiency of the evidence argument, a loser. One is failure of the judge to recuse, a loser. That leaves 3 decent ones. And one only applies because Trump was previously president.

And this is on a case involving Donald Trump. The standard holds.