More on questions presented
In a thoughtful comment, don has raised some valuable points about writing questions presented. My post, where you can also read don's entire comment, is here.
I want to address two topics he raised.
First, he called my approach dogmatic. I dislike being perceived as dogmatic--on most writing issues, I'm actually quite flexible. Mostly, I'm concerned with writers being informed and not hamstrung by "rules" that aren't. But as I re-read my original post, I do sound dogmatic. I'll work on it.
Second, he rightly points out that questions presented serve different functions in different documents. This I know, but my posts glossed over that. My posts were simple, not sophisticated. More on that in a moment.
For now, know this: all I really feel dogmatic about is that there should be no "rule" that all questions presented must be in a single sentence.
As to sophistication, here's a start. (There's definitely an article in this. Dibs!)
Questions presented, probably better called "issue statements," appear in many different kinds of documents, and a sophisticated writer will adapt the form, length, and sentences to the audience and the document. For example, in a persuasive brief on the merits, you should use a different approach from that used in an objective memo. The issue statement in a petition for discretionary review will take a different form from the issue statement in a client letter. And so on.
Consider these legal documents; the issue statement might take a different approach in all of them:
Client advice letter
Objective legal memo
Trial brief
Petition for discretionary review
Appellate brief on the merits
Mediation statement
Email message to a subordinate or supervisor
And more. What others can you think of?
4 Comments:
Professor,
I agree with Garner on most everything save for the "deep issue," which I have despised since being forced to peruse same while clerking.
The point of appellate writing is to distill complex legal issues down to a cognitively-manageable subset. Hence, why appellate briefs should strive to raise only a few (3-5) issues instead of the 20 that seemed important at trial.
My view is that deep issue briefing is lazy and sloppy because it forces the reviewing court to distill the salient issue from the opus presented by the advocate. This approach does not help the client.
And confining an issue presented to a single sentence is not--by definition--awkward, it just takes a little more effort and skill to get there. By way of example, every brilliant legal opinion you've ever read always had a knack for boiling the question on appeal down to a single, incisive sentence. If the Court is already going to draft such a sentence from the briefing, why not ingratiate one's clients to the Court by providing a reasonable, succinct starting point for the Court's subsequent efforts?
020033,
Your comment reflects the key role one's experiences play in forming one's tastes.
From reading issues presented in lawyer-written briefs, my experience is the opposite of yours. Nearly all the single-sentence issues are horribly abstract or so convoluted and hard to read as to be worthless.
Nearly all the multiple-sentence issues are much easier to read and easier to understand.
You read many more than I do, so your experiences deserves more weight.
-Wayne
Anyone paid by others to teach legal writing automatically gets more credence than I do for just spouting off about it.
And I readily admit and agree that most attempts (including my own) at arriving at a useful single-sentence issue fail miserably. That said, I think the goal of all who strive to both assist their clients and the jurists who are tasked with reading and digesting appellate musings should be to organize one's thoughts enough at the outset so that the bottom line of the argument is clear, concise, and convincing.
It rarely comes out that way, but I don't thik we should abandon the attempt because of the difficulty involved.
Great work on the blog as always.
Regardless of whether you use one sentence or multiple sentences, each "question presented" must consist of three elements: (i) a brief synopsis of the relevant law; (ii) a brief synopsis of the relevant facts; and (iii) a call of the question.
If any of these elements are missing, then the reader won't have the information necessary to form the issue in his or her mind. What good are facts if the reader doesn't know the general rule of law to which those facts apply. The corollary is also true. The call of the question is necessary to narrow the issue to those specific items of what you want the court to view.
I prefer the multi-sentence statement because it allows the drafter to fully address each element in its own sentence (or two). A single-sentence statement requires the drafter to address each element in a dependent clause within the sentence. Jamming a sentence full of dependent clauses usually leads to a sentence that is very dense and tedious to read.
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