How's the whether? Issue statements in briefs

Anyone who has attended one of Bryan Garner's briefwriting workshops has heard him advocate the "deep issue." Garner defines the deep issue as:

the ultimate, concrete question that a court needs to answer to decide a point your way. Deep refers to the deep structure of the case--not to deep thinking. The deep issue is the final question you pose when you can no longer usefully ask the follow-up question, "And what does that turn on?" The best form it can take is that of the syllogism.

Bryan A. Garner, The Winning Brief 49 (1999).

Garner suggests using separate sentences to set up your syllogism, making the issue statement fair but persuasive, and not starting it with "Whether." In the materials for his Advanced Legal Writing & Editing seminar, he gives the following examples of a "surface issue" (# 1) versus a deep issue (# 2):

1. Can Jones maintain an action for fraud?

2. To maintain a cause of action for fraud under California law, a plaintiff must show that the defendant made a false representation. In his deposition, Jones concedes that neither Continental nor its agents or employees made a false representation. Is Continental entitled to summary judgmetn on Jones's fraud claim?

Bryan A. Garner, Advanced Legal Writing & Editing 3-4 (1998).

Not everyone agrees with Garner's approach. One of the dissenters is Martin Stern, a partner at my firm, who recently circulated the following in an email to our appellate-practice group:

Knowing how much we all love to pontificate and argue the finer points of appellate brief writing, I thought I would throw this out to be shot at on this slow Friday afternoon.

I am a big believer in most of the "new and improved" ideas for brief writing (e.g, no legalese, active voice, short, crisp sentences, etc.). But one idea that I thought I liked, but I've decided I don't, is to present issues with some lead-in sentences that attempt to set the stage, instead of getting directly to the point with the old fashioned, "Whether . . ."

It is true that the new way of writing the issue argues more for the result you seek. But to my mind, that is the problem. It seems too much like argument. As an appellate judge, I think I would find it a turn-off and prefer a statement of the issue that seems more neutral.

The other problem I have with the new approach is that it is just too long. It is impossible for a judge to use it to boil the entire case to a single question, which is the beauty of the statement of the issue. For example, when a judge discusses the issue with his colleague on the panel, he isn't going to use our 3 sentence version if the other side presented it in a short, simple sentence. It simply isn't going to be used as the "handle" to the case.

All of this pushes me toward the more conventional "Whether . . . " construction. Of course, the trick to this approach is to state the issue fairly, and in a way that doesn't seem slanted, but in a way in which the answer suggests itself.

Fire away.
Martin

If you have any thoughts you'd like to share about this, please accept Martin's invitation by submitting a comment.

Comments

[Robert Markle]

While I like the Garnerian "deep-issue" formulation, I have heard judges express widely differing views on whether they like it.

The ones who like it think it's a good way to get across, in capsule form, what the case is about.

The ones who don't like it have expressed views similar to what you've mentioned--they prefer a shorter, less "loaded" formulation. See, e.g., Sup. Ct. R. 14.1(a) (The question presented for review should be expressed concisely in relation to the circumstances of the case, without unnecessary detail. The question should be short and should not be argumentative or repetitive.)

No one seems to be wedded to the strict "whether" format. And this is especially true when the issue statement tells you nothing about the particular case, e.g., "Whether the trial court erred by granting the defendant's summary-judgment motion."

I've experimented, using both the deep-issue formulation and a cross between that and the "whether" stuff.

[Ray]

Louis LaCour made this comment by email; I thought I'd add it to the mix. Says Louis:

"Fire away, indeed…. (!)

"OK, I'll wallow into the fray, I suppose.

"I dislike the 'whether' formulation because, gramatically, it's quite difficult to work the necessary factual data into the formulation in a way that is readable. Part of the problem is that you're confined to a single sentence, and another part of the problem is that you're beginning the sentence with an interrogative. These obstacles too often lead to a tangled collection of 'when…' clauses, pasted together with conjunctions. And this means the reader has to do some mental gymnastics to truly get an undertanding of just what 'the issue' really is.

"The 'minor premise, major premise, conclusion' formula permits a much more understandable exposition of the issue and, as a bonus, necessarily requires that the court internalize - however briefly - the essence of your argument. I think this pays dividends when the argument is fully revealed later in the brief, reinforcing, as it does, the previously internalized statement of the issue.

"I think the criticism of this formulation comes in the way some would handle the 'conclusion' part of the statement. You can make it as contentious, or not, as you wish. Court rules aside, I've never seen a 'whether' formulation that was more understandable than one that used several simple sentences. And, for me, that resolves the question."

[Ray]

I sent an email to Bryan Garner to get his impression of this thread. He responded, and gave me permission to post his response here:

"Ray--

"Thanks. I think it's interesting that [Martin] discusses his objections all in the abstract. Concrete instances, I think, could dispel the doubts in most readers' minds. The solution to the objection that the deep issue is 'unduly argumentative' is simply to omit the major premise, thus making the statement an incomplete syllogism (and what I call a 'deep analytical issue'). Then the major premise (the legal answer to the problem) comes in the argument section. But I've come to believe that the only time you should omit the major premise from the syllogistic deep issue occurs when it's so obvious that everybody already knows it. E.g., 'The First Amendment protects freedom of speech.'

"Show me a 'Whether . . . ' issue and the brief accompanying it, and I can show you a deep issue that will outdo it every time--in the sense that it will yield up its entire meaning to more readers much more quickly."

[Martin Stern]

I agree that the debate took an unfortunate detour into whether to use the word whether. It is a shame I used this word in my original message. I think there is often a better way to begin a statement of the issue. But I remain convinced that deep issue formation is not the way to go. Yesterday I asked a law clerk for an appellate judge. She agreed, saying that many judges don't like deep issue formation. She didn't know this name; she derisively described it as "those issues that have more than one sentence." I got the feeling that this is the way some appellate judges critically refer to it around the courthouse.

More important to me than the fact that some judges find it to be a turn-off (which is reason enough for me not to use it) is that you miss the opportunity to give the appellate judge a place to file the appeal away in his mind. Try using a deep issue formation as a way to do this; it doesn't work because as a syllogism, it is by definition a short argument -- not a way to capture the essence of what is at issue in a single phrase or sentence. The party who gives the appellate judge this catch-phrase has an advantage, particularly if done in a way that is fair, but subtlely favors his position.

[celia]

Both points are interesting. But having worked for an appellate judge and literally saw briefs flying across the room when they were poorly written, I think a short, concise sentence as the issue statement will always be appreciated by a court and its busy staff.

But what about the summary of the argument section of the brief? Don't judges often turn to this section to get the gist of the brief's argument? Would the deep issue treatment work better here?

[Ray]

I've already responded to Celia by email, but I thought I'd respond here also, to complete the thread.

I think the elements of a deep issue can work very well in a summary of the argument: the concrete facts of the case that bear directly on the decision, the legal principle or rule of law that applies to those facts, and the desired conclusion. The only difference is that in a deep issue, the "conclusion" is a question, while in a summary of the argument, the conclusion is a declarative sentence.

Wherever you put the elements of the deep issue, you should deliver them as early as you can, because an early deep-issue statement helps the reader by placing everything that follows in context. Under most courts' briefing rules, the summary of the argument may be a bit late to deliver those elements for the first time.

[Celia C. Elwell, RP]

Ray, I would add to your comments to start with your strongest argument and authorities in the summary of the argument and in your propositions. You don't start a war with a pea-shooter.

Judges will also look at the propositions to get a feel for the argument in the brief. Propositions can do much more than act as a heading. A really good proposition can help argue your conslusion to the issue.

[Barry Miller]

Excellent thread. Garner's deep-issue approach is much like writing a lead for a news story. As a former newspaper reporter, I appreciate that method.

The deep-issue formulation is clearly an argument, or at least a summary of an argument. That's why I do not like to end the deep issue with a question. I would rather state my argument, and use it to lead to a recitation of the facts. Reading briefs or memoranda that lack deep issue up front, I struggle to understand the facts. I don't know what facts relevant, or why they are relevant, until I know the issue in question. In such writing I usually have to re-read the facts after I have read the legal argument.

One thing that Garner makes clear in his excellent seminar--if you know that the particular judge you are writing for does not like the techniques he teaches, do not use them when writing for that judge.

I have noticed that most people who vehemently disagree with Garner's approach--not those who may quibble with certain ideas, but those who dislike his entire method--are not good writers. If their own work were readable, I would listen to their criticism.