Tuesday, May 15, 2007

Issue statements: under-does-when

Another approach to framing a legal issue is the "under-does-when" model, which can also be the "under-when-does" model. It works like this:
  • Under [this law] . . .
  • does [this outcome result] . . .
  • when [these facts happen]?
or
  • Under [this law] . . .
  • when [these facts happen] . . .
  • does [this outcome result]?
For example:
Under the Illinois Rules of Professional Conduct, does prosecutor Mark Rencher deserve to be disciplined by the state bar for dishonesty when--at the police's request--he lied to a dangerous fugitive by saying he was a public defender, when the fugitive was holding hostages, and when Rencher also talked the fugitive into surrendering without harming the hostages?
This style is better than the “whether” style because it is a complete sentence. But it still produces long, complicated sentences.

Tuesday, May 08, 2007

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.

Monday, May 07, 2007

Issue statements: single sentence?

A commenter writes--
[W]hen I was in law school (admittedly a long time ago), I learned that "questions presented" MUST be summed up in a single sentence each.
Yes, and that is still the technique most legal-writing teachers teach. But since 1997 I have been teaching a multiple sentence-issue statement, which I learned here:

Bryan A. Garner, The Deep Issue: A New Approach to Framing Legal Questions, 5 Scribes J. Leg. Writing 1 (1994-1995).

I do not insist that all issue statements be multiple sentences, but I certainly don't think the single-sentence approach is ideal.

Friday, May 04, 2007

Issue statements: example from State Bar of Texas

Question Presented:

May a lawyer who represents a client in a contingent fee personal injury case enter into an agreement with a lending company owned by non-lawyers under the terms of which the lending company would agree to reimburse the lawyer for litigation expenses in the case as incurred and the lawyer would agree to repay, in the event of a recovery in the lawsuit, the amounts advanced plus a funding fee equal to a fixed percentage of any amount recovered in the case but subject to an agreed maximum?

Op. No. 576, December 2006, published at 70 Tex. B. J. 456 (May 2007).

My comments:

This is a single sentence of 88 words with a Flesch score of 0 and a Flesch-Kincaid grade level of 16. But who cares about any of that? It's just hard to read and understand. I now take it through three revisions: (1) correctness, (2) sentence length, and (3) comprehensibility.

(1)
May a lawyer who represents a client in a contingent[hyphen]fee[comma] personal[hyphen]injury case enter into an agreement with a lending company owned by non[no hyphen]lawyers[comma] under the terms of which the lending company would agree to reimburse the lawyer for litigation expenses in the case as incurred[comma] and the lawyer would agree to repay, in the event of a recovery in the lawsuit, the amounts advanced plus a funding fee equal to a fixed percentage of any amount recovered in the case but subject to an agreed maximum?

(2)
A lawyer represents a client in a contingent-fee, personal-injury case. The lawyer seeks to enter into an agreement, with a lending company owned by nonlawyers, in which the lending company would agree to reimburse the lawyer for litigation expenses in the case as incurred. The lawyer would agree to repay, in the event of a recovery in the lawsuit, the amounts advanced plus a funding fee equal to a fixed percentage of any amount recovered in the case but subject to an agreed maximum. Is this agreement appropriate?

22 words per sentence, Flesch score of 42, and grade level of 13.

(3)
A lawyer represents a client in a contingent-fee, personal-injury case. The lawyer arranges for a lender owned by nonlawyers to reimburse the lawyer for litigation expenses as they are incurred. If the lawyer recovers money in the case, the lawyer will repay the amounts advanced plus a funding fee that is a percentage of the recovery; the funding fee is subject to a maximum. Is this agreement appropriate?

17 words per sentence, Flesch score of 50, and grade level of 9.5.

All my work here is open to criticism because this is a legal opinion directed at lawyers. But I say why not write plainly and clearly and readably all the time?