Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Thursday, November 21, 2013

Framing the Issues: "Whether" Versus the "Deep Issue" Question Presented

To follow up on Tonya’s post about persuasively framing issues, I thought I’d pose a question about the best way to frame the “question presented.”  Specifically, is it better to use the “whether” or the “deep issue” format?

In their 2008 book—Making Your CaseBryan Garner and Justice Scalia said that the “deep issue” is the “most persuasive form of an issue statement” because it allows the writer to present information in a way that even people unfamiliar with the area of law can understand.  They said this type of question usually “contains within it the syllogism that produces your desired conclusion,” and then they gave the following example:

Major premise:  Under Louisiana law, a husband is presumed to be the father of his wife's child unless he denies paternity within one year of the child’s birth. 

Minor premise:  Rousseve did not deny paternity within one year of Aleigha’s birth.

Conclusion:  Was he obliged to support Aleigha until he proved that he was not her father?    

Garner and Scalia said that “because seasoned legal readers are always impatient to find out what the case is about,” using the deep issue to give details about the case “satisfies a real need.”  They also said, however, that attorneys should avoid, in the rush to give details, posing “a one-sentence question that contains all the relevant premises,” a mistake that usually results in “a rambling statement that no mortal reader could wade through.”  Here is their example:

Whether there was a violation of the OSHA rule requiring every incident-investigation report to contain a list of factors that contributed to the incident, when the investigation report on the June 2002 explosion at the Vespante plant listed the contributing factors in an attachment to the report entitled “Contributing Factors,” as opposed to including them in the body of the report?

The better practice, according to Garner and Scalia, is to break the question presented into separate sentences totaling no more than 75 words, with the preliminary sentences explaining the case’s context and the final sentence posing the question that the court is being asked to answer.  Here is how they re-framed the same issue using this formula:

OSHA rules require every incident-investigation report to contain a list of factors that contributed to the incident.  The report on the June 2002 explosion at the Vespante plant listed the contributing factors not in the body of the report but in an attachment entitled “Contributing Factors.”   Did the report thereby violate OSHA rules?

For a different perspective, take a look at the book Noah Messing published this year, The Art of Advocacy.  He refused to be “prescriptive” in his chapter on questions presented, recognizing that “lawyers have widely divergent styles” and that “different customs prevail in different courts.”  He did, however, explain three different types of questions presented and address the pros and cons of each. 

First, he discussed what he called “short, neutral questions,” explaining that “most lawyers use, and many judges expect” this type of question presented.  Here is one of his examples:

Whether the district court violated petitioner’s Sixth Amendment rights by limiting his cross-examination of a government witness?

Messing said this type of question makes tradeoffs.  In particular, the writer chooses “brevity” over “comprehensiveness.”  And because of that choice, the question tells the reader little about the case.  On the other hand, Messing said that such short, neutral questions can build lawyers’ credibility with judges—at least those judges who prefer a neutral question—because the question appears unbiased.

Second, Messing discussed what he called “short, aggressive questions,” explaining that short questions “need not be meek.”  The advantage to this type of question is that it explains the issue quickly while strongly hinting at the desired outcome.  The drawback—although Messing didn’t expressly say so in this section of his book—is that you still must choose “brevity” over “comprehensiveness.”  Here is one of Messing’s examples:

Whether the Executive’s use of military power inside the United States to detain, without charge or trial, a person who is lawfully in the United States violates the Constitution where Congress has not expressly authorized such detention?

Finally, Messing discussed “the trend toward longer questions presented,” explaining that sometimes it may be useful to mention “some helpful authority, some helpful facts, or both” if the legal issue is complicated.  Here’s an example he used:

Justice Brent Benjamin of the Supreme Court of Appeals of West Virginia refused to recuse himself from the appeal of the $50 million jury verdict in this case, even though the CEO of the lead defendant spent $3 million supporting his campaign for a seat on the court—more than 60% of the total amount spent to support Justice Benjamin’s campaign—while preparing to appeal the verdict against his company.  After winning election to the court, Justice Benjamin cast the deciding vote in the court’s 3-2 decision overturning the verdict.  The question presented is whether Justice Benjamin’s failure to recuse himself from participation in his principal financial supporter’s case violated the Due Process Clause of the Fourteenth Amendment.

Messing said that “many top lawyers favor longer questions presented” like this, but he cautioned that lengthier questions increase the risk of undermining the lawyer’s credibility (by being too aggressive) or boring the judge.  Messing also warned against using the “syllogism” method that Garner and Scalia addressed in their book.  While he recognized that it can be done well, he said that “few lawyers follow this form” and that questions presented in this form are often “ham-fisted.”          

So what do you think?  “Whether” or the “deep issue”?  Does it depend on the case?  Does it depend on the court?  If your answer is “I don’t know,” take a look at Making Your Case and The Art of Advocacy.  Both are good sources that might help you decide.

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I choose brevity. I find brief questions to be more clear and direct. I agree with Scalia and Garner that the single-sentence deep issue "question presented" is usually an ineffective eyesore. But I don't find their separate sentence alternative satisfactory. For starters, it isn't a question; it's a tiny argument. It's an improvement, if only because it's more readable, but it still strikes me as unwieldy and more transparently partisan.

Given a choice, I'll start with the brief version Messing suggests and scale up as need be to include necessary subtleties.

Posted by: David R. Cleveland | Nov 21, 2013 12:14:02 PM

I also choose brevity, but of the 'short aggressive question' variety. In my opinion, advocates should take every opportunity to persuade, and that starts with the question presented and continues through the conclusion.

Posted by: Kendall D. Isaac | Nov 22, 2013 6:31:15 AM

What I've done sometimes is combined the two, preceding a deep-issue statement with a short description of an issue. I wish I could credit the idea, but all I remember is I saw it either on The New Legal Writer or Legal Writing Prof Blog. Here's an example; if I could format in this comments form, the first sentence would be bolded:

Failure to disprove self-defense. The State had to disprove that Jane Doe acted in self defense. Photographs, however, portray the chaotic, violent scene Doe described, not the State’s cold-blooded story of a one-sided assault. Especially because the State’s witnesses again failed to keep their stories straight, should this Court reverse Doe's heinous-battery conviction?

Posted by: Michael Orenstein | Nov 26, 2013 8:47:43 AM

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