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The elephant in the room

Issue statements in the real world

How do practicing lawyers write issue statements in appellate briefs? Professor Judith Fischer set out to answer that question by analyzing samples of 50 sets of briefs from each of six states. The results are in her new article, Got Issues? An Empirical Study About Framing Them, available on SSRN. Though she does not concludes that any one format is mor effective than another, she does draw from her study some hints for writing more effective issue statements:

  • Restrict the number of issue statements to a manageable few. Her article cites Judge Aldisert’s advice to raise no more than three issues in a brief.
  • If the issue statement appears before the statement of facts, then refer to parties by their roles rather than their names, e.g. “the employee,” “the injured person,” “the taxpayer,” “the ship,” “the stevedore.” Fed. R. App. P. 28(e). But if the issue statement appears after the statement of facts, you can use the parties’ names.
  • Unless the issue is a purely legal question, incorporate some legally relevant facts.
  • Make the issue statement subtly persuasive but not overtly argumentative.
  • Ask a question that commands a “yes” or “no” answer.
  • If court rules conflict with these hints, follow the court rules.