Defending the single-sentence question presented
A reader defends the single-sentence question presented:
Focus is my #1 reason: Limiting the Question Presented to one sentence forces the writer to focus on the overall issue that is addressed in the memorandum and the key facts that determine its outcome.I say that one can maintain the same focus even if the issue statement is three sentences long. To me, it's a matter of mental discipline, not the number of sentences.
Brevity is my #2 reason; 75 words is still way too long, be they contained in one sentence or more than one. About 30 to 40 words ought to suffice.It's hard to argue with this. I'm a big fan of brevity, and 30-40 words will take the reader half as long to get through as 75 words. Point well taken.
I will only respond this way: For plenty of legal writers, executing of the 30-word, single-sentence question presented is a problem. Since it's not usually possible to cram much detail or specifics into 30 or 40 words, these short, single-sentence questions tend to be superficial and abstract, like this:
Does substantial evidence of record supports the ALJ's decision to deny disability benefits to the claimant?And this:
Will a trial court deny Smith's Motion to Transfer Venue on the ground that Travis County is a proper venue?Or they tend to be awkwardly constructed because the writer is trying to get a lot of information into one sentence, like this:
Is the evidence legally and factually sufficient to support the judgment that the wrapping and packaging exclusion to the resale exemption to the Texas sales tax applies to HWC's purchase of nonreturnable reels required in wire product assemblies that HWC sold to its customers?These examples show what I all too often see when legal writers strive to keep the question presented to a single sentence. Maybe it's just poor execution, but I think the multiple-sentence approach, even if it is a bit long at times, is better because it allows the writer to get some details in there and make the text more readable.
1 Comments:
From a real-world perspective, I think you're right to teach the syllogism method --- but I think you're wrong to be dogmatic about its universal superiority.
It's a powerful tool that's better suited to some tasks than others. Good legal writers should know how to use it --- and when.
To be clear, I'm a big fan of what I think of as Garner-style questions. (I learned them at one of his seminars in 1999.) If you're writing a memo about a particular fact pattern, they can be quite useful as a sort of pseudo-summary, conveying the rule of law, the facts, and implying the conclusion.
But, in advocacy, they are not always the right approach. I think you should teach your students to evaluate each issue in their case and to make a pragmatic judgment about what form of question best advances their goal.
For example, some issues just sound less important in a Garner-style presentation. The syllogism form can (absent great care) make the legal premise sound settled rather than interesting. And the detailed facts that you find to be a virtue can make the application of that rule sound narrow. Why does that matter? In a court with discretionary review, an issue that sounds unimportant can kill your appeal at the outset.
There's also the matter than the way you frame your issue in a brief has an error-preservation function complementing the persuasive one. The more detailed and specific your question, the narrower it is --- and the more possible error you have not preserved. It's a balance that may weigh differently in each case.
And there is a fallacy-of-composition problem in thinking that, if each Garner-style question is more persuasive than its corresponding single-sentence question, the same necessarily holds true for the Issues Presented page as a whole. Here's why:
If your case has three or four issues (and there are some times when that is unavoidable), writing all of them as freestanding Garner-style questions can really destroy the ability of the Issues Presented page to capture the court's attention. A block of single-spaced, multiple-sentence issues can be a chore to read. By contrast, if only the key issue is presented Garner-style and the others are single-sentence (and designed just to convey the general idea and preserve error), you have a much better shot at having the Court remember how you want them to frame the key issue.
And why not vary the lengths of your questions presented just as you might the lengths of your sentences?
There's nothing wrong with secondary issues that say "Was the ALJ's determination that the claimant was disabled supported by substantial evidence?" or "Did Smith preserve error in the trial court on his challenge to the jury's damage award?", especially if those issues are not the centerpiece of your appeal. If you give the same emphasis to every issue on the Issues Presented page, you may as well be highlighting the whole page with a yellow marker. Nothing stands out.
I didn't intend to write such a long comment, but the dogmatism of this debate concerns me. Teaching the students both sets of skills, and some pragmatism about choosing between them, would go a long way.
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