Wednesday, July 28, 2021
Last time I focused on understanding and explaining the law generally using syllogisms. Today, I'm going to focus solely on questions presented.
The structure of appellate briefs themselves have been compared to syllogisms, but the most helpful place I have found to use them most often is in questions presented. The goal is to have three sentences: one on the law, one with relevant facts, and then a question suggesting the result in light of those law and facts.
Not every question needs the first sentence on the law--it may be implied (making your syllogism an enthymeme) if you know that your audience is familiar with the law. Here’s an example from a drug dealing case:
As “the person who supplies marijuana for the town,” was defendant entrapped when she approached confidential informants and asked them to front $100 for her drug run?”
I would have made the law explicit here: A person is entrapped if law enforcement improperly appeal to a person’s emotions to convince them to do something illegal that they are not otherwise inclined to do. But yeah, the court didn’t think that she was entrapped either.
Another enthymeme example from my office. This was a much tougher case for the State because the defense position had a lot of surface appeal. The defense framed the question as whether the defendant should get a new trial “because the majority of the involved trial (i.e., court reporter notes of the second day of trial and trial exhibits) had been lost or destroyed?” But by adding some key record facts, the attorney (later a member of our court of appeals) was able to turn the tide in the State’s favor:
Did defendant’s absconding for seven years between verdict and sentencing, during which time defense counsel died, the trial reporter’s notes were lost, and the child victim grew up, so prejudice the judicial process that his appeal must be dismissed?
The defendant did not get a new trial.
A couple more, these more explicit. The first is from a cattle rustlin’ case. The defendant had swept up some of his neighbor’s cattle into his own herd and kept them. A state brand inspector used some binoculars to look at the cows’ tags and verify ownership. The defendant argued that this violated his Fourth Amendment rights. The question:
The Fourth Amendment does not apply to “open fields.” A State investigator spotted stolen cattle among Lamb’s herd as the herd grazed in an open pasture. Is a pasture an “open field” for purposes of the Fourth Amendment?
The court did not even hold argument on this.
And finally, a child pornography case. The defendant claimed that the statute of limitations on his crime ran while he was living out of state because, while he was living out of state, he had an attorney in state and thus was constructively present. The question:
The criminal statute of limitations is tolled “during any period of time in which a defendant is out of the state following the commission of an offense.” There are no exceptions to this rule. Did the trial court correctly conclude that Defendant was “out of the state” of Utah while he was in either New Mexico or Florida?
You get the idea: a brief statement of the law, a few choice facts, and a question that suggests the answer you want the court to reach without hitting the judges over the head with it. It takes a lot of time to get to that “simplicity on the other side of complexity,” as Justice Holmes put it. But it’s well worth it, both for your understanding and your persuasiveness.
 Wilson Huhn, The Use and Limits of Syllogistic Reasoning in Briefing Cases, 42 Santa Clara L. Rev. 813, 813 (2002) (“The question is the issue; the minor premise is the facts section; the major premise is the applicable law; and the holding of the court is the conclusion.”).
 State v. Beddoes, 890 P.2d 1 (Utah Ct. App. 1995).
 State v. Verikokides, 925 P.2d 1255 (Utah Ct. App. 1996).
 State v. Lamb, 294 P.3d 639 (Utah Ct. App. 2013).
 State v. Canton, 308 P.3d 517 (Utah 2013).