Sunday, September 4, 2022
Presenting Issues as an Advocate
Last week, I responded to a noticeably short opening brief in an interlocutory appeal that sought to make the issue a simple one. That brief mustered little authority and asserted a purely legal question reflected in the relevant law’s text. In framing the issue, the brief stated it neutrally as though the brief would provide a learned disquisition that would enable the court to answer the question, rather than advocacy of a particular result. Of course, the body of the brief pushed a singular point of view. The question presented, then, did not contribute to the advocacy.
Usually, advocates lose an opportunity when the issue presented does not itself suggest an obvious answer. Judges normally read the issue presented as the first clue about what the case concerns. My brief began with a “restatement” of the issue presented, which emphasized whether the issue merited an answer because of an underlying dispute about the facts. A court does not answer a pure legal question when the answer is merely advisory. The case concerned an immunity for one of two bases for liability. If the other party lacked eligibility for the immunity, as we contended, then the court, under its precedents, lacked jurisdiction to answer the question and should, as it had done in the past, dismiss the appeal as improvidently granted.
In restating the question to pose the problem that a central factual dispute still existed, I led the court into the first section of my brief, where I quoted the court’s own observation that “too often” courts grant review of a pure legal question only to discover upon briefing and argument that facts must first be established before the question becomes ripe. More substantive sections of the brief also worked in the unanswered question of eligibility as confounding to deeper questions about the statute as a whole and limits on the constitutional authority to promulgate the immunity.
In restating the question as I did, I followed the age-old advice voiced again by Justice Scalia and Bryan Garner in Making Your Case: The Art of Persuading Judges: “A well-framed issue statement suggests the outcome you desire.” They follow that statement with an example of the Court’s framing of the issue in Eisenstadt v. Baird, the once-again controversial case of whether Connecticut could prohibit the sale of contraceptives to unmarried people.
The authors note that Judge Posner thought the Court might have struggled more with an answer if the question presented were stated as:
We must decide whether the state is constitutionally obligated to allow the sale of goods that facilitate fornication and adultery by making those practices less costly.
Instead, the Court presented the issue as:
If the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.
Both versions of the question presented suggests an answer. Still, there is a cognizable difference between them that advocates should recognize. The first version, drafted by Judge Posner, makes an appeal to an ideological predisposition by its language that may alienate some judges. A more effective formulation would present the same question in more neutral and less inflammatory terms, as the Court’s decision did. As Scalia and Garner remind us, “you are here to reason with the court and cannot do so successfully if you show yourself to be unreasonable.”
 Antonin Scalia and Bryan A. Garner, Making Your Case: The Art of Persuading Judges 83 (2008).
 Richard A. Posner, Law and Literature: A Misunderstood Relation 305 (1988) (quoted in Scalia and Garner, supra note one, at 84).
 Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).
 Scalia and Garner, supra note 1, at 84-85.