Appellate Advocacy Blog

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

Thursday, January 23, 2014

Streamlining Longer Issue Statements

Multi-blade_scissors (1)It's time to round out our short series on "multisentence" or "deep" issue statements. Previously, I looked at how to use longer issue statements to frame the issue, as well as how to achieve more objectivity by balancing the factual context both for and against the client. Thomas Burch also weighed the overall pros and cons of the deep issue method.

Below, an otherwise good example shows us where we can eliminate some extra baggage for a more streamlined statement that highlights the client's problem, rather than several distracting, low-priority details. This post continues using the recent contraceptive health care coverage cases from the Seventh Circuit. Once again, the examples come from the employers' briefs because most of the Justice Department briefs used simpler, "whether"-style issue statements.

Before streamlining

Federal regulations enacted pursuant to the Patient Protection and Affordable Care Act, Pub. L. No. 111-148 (March 23, 2010) (hereafter “the Affordable Care Act”) require many employers, under pain of penalty, to include in their employee health benefit plans coverage for contraceptives, including abortion-inducing drugs, sterilization, and related patient education and counseling (hereafter “the Mandate”). Plaintiffs Cyril and Jane Korte own the controlling interest in Plaintiff K & L Contractors, Inc. (hereafter “K&L”). Plaintiffs' Catholic religious beliefs specifically forbid them from paying for or providing these products and services, directly or indirectly, as the challenged Mandate requires them to do. The district court denied Plaintiffs' motion for a preliminary injunction, and a motions panel of this Court thereafter granted Plaintiffs' emergency motion for an injunction pending appeal. App. 23, 28. The issues presented are: [134 words; proceeding list of "whether" statements omitted].

After streamlining:

Federal regulations enacted pursuant to [enforcing] the Patient Protection and Affordable Care Act, Pub. L. No. 111-148 (March 23, 2010) (hereafter “the Affordable Care Act”) require many employers, under pain of penalty, to include in their employee health benefit plans coverage for contraceptives, including abortion-inducing drugs, sterilization, and related patient education and counseling (hereafter “the Mandate”). Plaintiffs Cyril and Jane Korte own the controlling interest in Plaintiff K & L Contractors, Inc. (hereafter “K&L”). Plaintiffs' Catholic religious beliefs specifically forbid them from paying for or providing these products and services, directly or indirectly, as the challenged Mandate requires them to do. The district court denied Plaintiffs' motion for a preliminary injunction, and a motions panel of this Court thereafter granted Plaintiffs' emergency motion for an injunction pending appeal. App. 23, 28. The issues presented are: [72 words; proceeding list of "whether" statements omitted].

In the "after" example, I've eliminated the following types of information:

  1. Longer prepositional phrases such as "pursuant to," where a simple preposition such as "under"--or a better verb--would convey the same meaning
  2. Full, formal names of statutes when the act is easily recognized by a shorter name
  3. Legal citations and record citations that the judicial reader knows will be provided shortly in the sections to come
  4. "Hereafter + short name" parentheticals. The "hereafter" parenthetical is sorely overused in almost all legal writing. The device simply is not needed when there is no real chance the reader would mistake the short name for a different concept, entity, or party.
  5. Redundant or implicit concepts: here, that a federal statute mandating certain activity also does so under "pain of penalty," and "as required." (If the writer wishes to emphasize the penalty, it will normally be better to state factually what the penalty is, and to let the reader form her own impression that the consequence is too harsh.)
  6. Procedural history that is already clear from the preceding jurisdictional statement and that is not central to the main issues under review.

Source: Cyril B. Korte, et al., Plaintiffs-Appellants, v. United States Department of Health and Human Services, et al., Defendants-Appellees., 2013 WL 431686 (C.A.7), 3-4

Image: Wikimedia Commons

https://lawprofessors.typepad.com/appellate_advocacy/2014/01/streamlining-longer-issue-statements.html

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