Issue statements: the "whether" style
In the “whether” style, you state the legal question in a single sentence beginning with the word “whether.” This approach is traditional—some might say archaic—but still common today. It looks like this:
Whether prosecutor Mark Rencher, who was asked by police to lie to a dangerous fugitive, where the fugitive was holding hostages, and where Rencher told the fugitive that he was a public defender and talked the fugitive into surrendering without harming the hostages, should be disciplined by the Illinois State Bar?The “whether” style has two drawbacks. It is not a grammatical sentence (it lacks the phrase “The question is whether . . .”). And it produces long, complicated sentences.
Because of the drawbacks, lawyers using the "whether" style would have a hard time justifying it except on the basis that it is a tradition. I think it is a poor way to write issue statements.
5 Comments:
I teach my law students three formats for issues. I teach the "whether" format and the deep-issues format, plus the "under-does-when" format. This third format is similar to the "whether" format, but it has the advantage of being a complete sentence. It also reminds the students that the jurisdiction is important.
An "under-does-when" format might look something like this:
"Under the disciplinary rules of the Illinois State Bar, should a prosecutor be disciplined when he was asked by police to lie to a dangerous fugitive . . . ."
I much prefer the deep-issues format, but I don't know where my students are going, and I want them to be knowledgeable about and competent in all three formats. Some courts and some law firms may require that each issue be written in a single sentence. Some lawyers may believe that a single-sentence format is required because that is all they ever see.
I hope that someday the deep-issues format will predominate. It is much easier to read and to understand.
I have heard complaints from judges about multiple-sentence issues being too long. That complaint can be mitigated if issue writers will limit the issues to 75 words apiece.
I agree wholeheartedly it's a poor way, but it is so ingrained it's hard to get past. I recently taught a second-semester legal writing class. My students had taken first semester from seven different (full-time, tenure-track) young profs.
All seven had required rigid adherence to "whether" statements. The students were aghast and sure I was wrong when I told them never to do it in my class.
I prefer the deep issue format. It serves to logically (often a syllogism) establish your thesis while simultaneously serving to summarize your argument, all within 75 words.
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