In an appellate brief, the Question Presented is a statement of the legal issue or issues that each party wants the court to resolve.1

Trial motions generally do not contain a stand-alone section dedicated to the Question Presented, but effective motions usually specify within a page or two which issue or issues the motion requires the trial judge to resolve.

This chapter is less prescriptive than other parts of the book. As you will see throughout the following pages, lawyers have widely divergent styles, and different customs prevail in different courts. Each approach has strengths and shortcomings. I promised you in the Introduction that you would get to cultivate your own style, and that is truer for this chapter than for any other. Review the examples and move toward an approach that suits you.

Only one rule is rigid: a Question Presented must frame the issue precisely. Lawyers spar, however, over how long Questions Presented should be and whether Questions Presented should frame issues neutrally or in a partisan way.

The most common Question Presented is short, precise, and neutral (or nearly neutral). According to one study of Questions Presented in the courts of six states, 95 percent of issue statements were phrased in a single sentence, and issue statements averaged thirty-seven words in length.²

Many top lawyers, however, have begun to make their Questions Presented longer and more partisan. This approach, which is common among private-sector, appellate specialists who litigate in federal courts, may jar some readers who expect the Question Presented to frame the issue neutrally. But many elite lawyers have realized that the prime real estate owned by the Question Presented — near the beginning of briefs — is too valuable to be squandered with a vague, tepid statement. Instead, these lawyers usually both add some trenchant details and signal how they want the case to be resolved. Thus, Questions Presented are becoming longer and more aggressive, though this choice remains a minority approach.

This chapter provides examples of a variety of styles. Do not believe anyone who tells you that there is only one way to draft a Question Presented; top lawyers follow widely divergent approaches. In general, my view favors aggressive Questions that provide some pivotal facts about the case, but no empirical work has proven that any specific approach yields superior results, no approach has built a consensus among top lawyers, and plenty of great lawyers prefer a different convention.

In the absence of any definitive guidelines, please your bosses and clients, and follow this tip from one of the nation’s top appellate lawyers, Roy Englert: “Woe unto the lawyer who has,” by the end of the Question Presented, “both irritated the judge by trying the judge’s patience and lost credibility.” Unlike earlier chapters in this book, this chapter provides no background about the cases in which the Questions Presented appeared. That approach puts you in the same position as judges who are introduced to a case by the Questions Presented.