Getting to "Yes": Framing Issues on Appeal

Many practitioners, it seems, view the "issues on appeal" section of their brief as a waste of space.  I don't know that for sure.  But it seems likely given the slapdash way many of those sections are composed. 

I'm going to assume everyone knows that this issue statement is no good:  Did the trial court err in awarding summary judgment?  It is my least favorite issue statement of all time.  If you find yourself writing this issue statement; stop.  It's not the answer. 

What I'm talking about are those issue statements that do a sufficient job of alerting the court to the central issue in the case, but that don't go far enough.  Here's a perfect example that I found after five minutes on the North Carolina Court of Appeals' website:

WHETHER THE FULL COMMISSION ERRED IN AWARDING ATTORNEY'S FEES PURSUANT TO N.C. GEN. STAT. § 97- 88?

There's not a lot of substance to unpack here.  I know from reading question that the appellant claims the North Carolina Industrial Commission erred when it awarded attorney's fees.  And I know the relevant statute.  In that regard, this issue statement does its job just fine. 

But it could do so much more.  First, it needs more information.  Second, it needs some emotional appeal.  Shifting gears and heading into the world of contract law, let's build an issue statement that both does its job and does it well.

Here's some background.  The plaintiff brought a breach of contract claim against the defendant, who contends that the claim is barred by a release.  The plaintiff has admitted elsewhere that the release is valid.  The trial court concluded the claim was barred and dismissed the case.  The plaintiff has appealed. 

The defendant's most basic issue statement would read something like this: 

Did the trial court correctly dismiss plaintiff's breach of contract claim?

As before, this statement tells the court what's at issue and what the defendant's position is on it.  It just doesn't do anything else.  To give the court some extra information, the defendant might consider:

Did the trial court correctly dismiss plaintiff's breach of contract claim after concluding it is barred by the release?

In this iteration, the defendant has again conveyed to the court the issue and the defendant's position on that issue.  By noting the release, the defendant also has conveyed the trial court's reasoning.  Still, this issue statement is missing something.  It tells the court what's going on, but it doesn't persuade.  It lacks emotional appeal.  For some real pizazz, the defendant might consider crafting an issue statement that goes one step farther:

Did the trial court correctly dismiss plaintiff's breach of contract claim when that claim pre-dates an admittedly valid release?

This statement goes all in.  It tells the appellate court what the trial court did, but more importantly, it tells the appellate court why the trial court was right.  That is, why the defendant should win.

The question has an important feature that its predecessors lack:  its answer is "yes."  Writing an issue statement so that it must be answered "yes" goes a long way to bolster your case.  It gets the court thinking about the facts and the law in the light most favorable to your client. And it does so early.  By writing an issue statement with a clear answer, you're ensuring that the court will see the case through your eyes early on.  That's a huge advantage, especially if you're the appellant. 

So, next time you sit down to write an issue statement, resist the urge to recycle your old standby and spend some time crafting a quality question that the court can't help but answer in your favor.