COLUMN > Write to Counsel
BY MIREILLE BUTLER
“[A] good brief presents the issue clearly … It makes you want to decide it. It’s like a good book; it will draw you in.”11 www.lawprose.org/bryan-garner/videos/judges-lawyers-writers-writing/judge-dolores-k-sloviter-u-s-3rd-circuit-court-of-appeals-philadelphia-a-good-brief-draws-you-in/.
There are many different ways to frame an issue. The various methods for framing the issue that attorneys currently use include some, or all, of the following principles:
- You should frame the issue in a single sentence.
- Your issue must start with the word “whether.”
- Your issue should ask a legal question but avoid stating any facts.
- You should give the relevant legal and factual context, but you must still fit it all into one sentence.
These methods are certainly not “wrong.” In fact, the single-sentence method is what I was taught and what many practitioners do. But this method can produce issue statements that are vague because they lack legal or factual context, confusing because they have so much information packed in them, or grammatically incorrect because they are fragments rather than complete sentences.
So, although there are different approaches to writing issue statements, the “deep issue” method offers many advantages compared to more traditional approaches. It captures the reader’s attention at the outset of a written piece and creates a lasting impression in the reader’s mind. It is also the style that is the most clear, concise, and informative.
But before explaining the “deep issue” method for structuring issue statements in legal memoranda and briefs, it is helpful to understand why formulating the issues up front in the writing process is essential.
YOUR AUDIENCE IS BUSY
Legal writers must think about the many competing demands on their audience’s time. Judges want to know immediately what the dispute is and how to resolve it. This is why the Supreme Court rules require “Questions Presented for Review” to be the first thing judges see in a brief—immediately following the cover and before any tables.22 Sup. Ct. R. 24. Similarly, the King County Superior Court local rules require issue statements at the start of motions.33 King Cnty. Super. Ct. Loc. Civ. Rules LCR 7(b)(5) B(iii); see alsowww.kingcounty.gov/courts/clerk/rules/LCR_7.aspx.
And if you are writing a legal memorandum, it is helpful for your intended audience to understand the point of it quickly. What is the question? What is your answer? And what are the reasons for that answer?
MEMOS AND BRIEFS ARE NOT MYSTERY NOVELS
You as the writer want to focus the reader’s attention on the precise legal issues at stake and the legally significant facts that are key to deciding those issues. This information should be front and center in your memo or brief. You must help define the parameters of the dispute and focus the reader. You do not want to leave the reader guessing what is important.
One of my favorite quotes is found in Independent Towers of Washington v. Washington44 350 F.3d 925, 929 (9th Cir. 2003).:
When reading ITOW’s brief, one wonders if ITOW, in its own version of the “spaghetti approach,” has heaved the entire contents of a pot against the wall in hopes that something would stick. We decline, however, to sort through the noodles in search of ITOW’s claim. As the Seventh Circuit observed in its now familiar maxim, “[j]udges are not like pigs, hunting for truffles buried in briefs.” United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991).
IF THE ISSUE IS CLEAR IN THE WRITER’S MIND, THE WRITING WILL BE CLEAR ON THE PAGE
Justice Felix Frankfurter wrote “[p]utting the wrong questions is not likely to beget right answers … in law.”55 Vanston Bondholders Protective Committee v. Green, 329 U.S. 156, 170 (1946).
Too often, legal writers jump right into writing without taking the time to think through whether their analysis is appropriately restrained to the legal issue. Tailoring the issue statement will help the legal writer better understand the boundaries of the analysis or argument. If you force yourself to figure out what the essence of the arguments is before you write, you will have created efficiencies later on in your writing process.
THE PREMISE-PREMISE-QUESTION FORM
The “deep issue” statement is described in detail in Bryan Garner’s book The Winning Brief.66 (3d ed. 2014). Garner recommends a maximum of 75 words (three to four sentences). There is a word count because the purpose of this structure is to force the writer to home in on the true heart of the controversy or legal question and frame it concisely.
The premise-premise-question form is essentially a syllogism and includes:
- Major premise stating the law governing the narrow legal issue.
- Minor premise presenting the outcome-determinative facts that tie into the major premise—showing its applicability or non-applicability.
- Conclusion framed as a question.
Only the law on the narrow issue and the facts upon which the narrow issue turns should be included. Everything else—any ancillary legal issues, any facts that are not outcome-determinative—should be omitted. But by providing the crucial legal and factual context, your framing of the issues leaves an impression and sticks in the reader’s mind. Without knowing the key context, the reader cannot understand what happened.
THE ‘DEEP ISSUE’ METHOD IN PRACTICE
The best way to understand the effectiveness of “deep issue” statements is to see how they work in practice. The “deep issue” format has found its way into the United States Supreme Court’s certiorari process. Various petitions, such as the one below, use it to great effect:
Student loans are statutorily non-dischargeable in bankruptcy unless repayment would cause the debtor an “undue hardship.” Debtor failed to prove undue hardship in an adversary proceeding as required by the Bankruptcy Rules, and instead, merely declared a discharge in his Chapter 13 plan. Are the orders confirming the plan and discharging debtor void? 77 Petition for Writ of Certiorari at 1, United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260 (2010) (No. 08-1134), 2009 WL 641508 at ∗1.
If the major premise is a well-known tenet of the law, alluding to it might be sufficient, as Eugene Volokh88 Gary T. Schwartz Professor of Law at the UCLA School of Law and academic affiliate at Mayer Brown LLP. did with the Takings Clause:
[T]he Illinois Supreme Court held that a state law transferring the revenues of four Illinois casinos to five Illinois horse-racing tracks is categorically not susceptible to challenge under the Takings Clause of the Fifth Amendment because, in that court’s view, “regulatory actions requiring the payment of money are not takings.” The question presented is: Whether the state’s taking of money from private parties is wholly outside the scope of the Takings Clause.99Petition for Writ of Certiorari at 1, Empress Casino Joliet Corp. v. Giannoulias, 556 U.S. 1281 (2009) (No. 08-945), 2009 WL 208133 at ∗1.
Indeed, the “deep issue” format is flexible. For example, statutory questions are particularly well-suited for a “deep issue” format (this is because statutory issues, when framed in a single-sentence question, often require too many sub-clauses to convey both the broader rules and the specific question). But to avoid weighing down the question with minutia that is not necessary to understand the statutory issue, the writer might omit much of the factual context and focus instead on the legal context.
An example of a “deep issue” applied to a statutory question can be found in Bloate v. United States:1010 Petition for Writ of Certiorari at 1, Bloate v. United States of America, 559 U.S. 196 (2010) (No. 08-728), 2008 WL 5129019 at ∗1.
The Speedy Trial Act, 18 U.S.C. § 3161 et seq., requires that a criminal defendant be tried within 70 days of indictment or the defendant’s first appearance in court, whichever is later. In calculating the 70-day period, 18 U.S.C. § 3161(h) (1) automatically excludes “delay resulting from other proceedings concerning the defendant, including but not limited to ∗ ∗ ∗ (D) delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of such motion.” The question presented here is: Whether time granted to prepare pretrial motions is excludable under § 3161(h)(1).
And this is an example from a 2016 brief written by Deepak Gupta, a well-known Supreme Court practitioner:
New York, like all states, allows merchants to charge higher prices to consumers who pay with a credit card instead of cash. But New York’s no-surcharge law, N.Y. Gen. Bus. Law § 518, requires merchants to label that price difference as a cash “discount” and makes it a crime—punishable by up to one year in jail—to label it as a credit card “surcharge.” The question presented is whether New York’s no-surcharge law unconstitutionally restricts speech.1111 Brief for Petitioner at 1, Expressions Hair Design v. Schneiderman, 137 S. Ct. 1144 (2017) (No. 15–1391), 2016 WL 6833414 at ∗1.
An additional point about “deep issue” statements is that, in briefs, they are persuasive. The language should read objectively, but it should be clear which side you are on. The issue statement below, though seemingly objective, is slanted to suggest that the answer to the question is “no.”
Bankruptcy Rules permit discharge of a student loan only through an adversary proceeding, commenced by filing a complaint and serving it and a summons on an appropriate agent of the creditor. Instead, debtor merely included a declaration of discharge in his Chapter 13 plan and mailed it to creditor’s post office box. Does such procedure meet the rigorous demands of due process and entitle the resulting orders to respect under principles of res judicata?1212 Petition for Writ of Certiorari at 1, Espinosa, 559 U.S. 260 (2010) (No. 08-1134), 2009 WL 641508 at ∗1.
Finally, beyond capturing your arguments clearly to make a lasting first impression, syllogistic thinking also helps you spot weaknesses in your opponents’ arguments. Whether their issue statements are framed as “deep issues” or not, using syllogistic thinking helps uncover the basis on which their arguments might fail. Are the premises untrue? Do they state the relevant, governing rule? Do they conceive of that rule too broadly or narrowly? Do they omit outcome-determinative facts? As Naguib Mahfouz1313 Paraphrased from Naguib Mahfouz, winner of the Nobel Prize in Literature, 1988. wrote, you can tell whether people are clever by their answers; you can tell whether people are wise by their questions.
2. Sup. Ct. R. 24.
3. King Cnty. Super. Ct. Loc. Civ. Rules LCR 7(b)(5) B(iii); see alsowww.kingcounty.gov/courts/clerk/rules/LCR_7.aspx.
4. 350 F.3d 925, 929 (9th Cir. 2003).
5. Vanston Bondholders Protective Committee v. Green, 329 U.S. 156, 170 (1946).
6. (3d ed. 2014).
7. Petition for Writ of Certiorari at 1, United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260 (2010) (No. 08-1134), 2009 WL 641508 at ∗1.
8. Gary T. Schwartz Professor of Law at the UCLA School of Law and academic affiliate at Mayer Brown LLP.
9. Petition for Writ of Certiorari at 1, Empress Casino Joliet Corp. v. Giannoulias, 556 U.S. 1281 (2009) (No. 08-945), 2009 WL 208133 at ∗1.
10. Petition for Writ of Certiorari at 1, Bloate v. United States of America, 559 U.S. 196 (2010) (No. 08-728), 2008 WL 5129019 at ∗1.
11. Brief for Petitioner at 1, Expressions Hair Design v. Schneiderman, 137 S. Ct. 1144 (2017) (No. 15–1391), 2016 WL 6833414 at ∗1.
12. Petition for Writ of Certiorari at 1, Espinosa, 559 U.S. 260 (2010) (No. 08-1134), 2009 WL 641508 at ∗1.
13. Paraphrased from Naguib Mahfouz, winner of the Nobel Prize in Literature, 1988.