FREQUENTLY ASKED QUESTIONS ABOUT QUESTIONS PRESENTED

^Q.

Does my Question Presented need to begin with the word “Whether,” as nearly all of the examples in this chapter do?

^A.

^{No, unless your jurisdiction has unusual local rules.
That said, one study found that 61.4 percent of Questions Presented began with “Whether.”}7 In second place, 10.5 percent of Questions began with the word “Does,” and “Is” finished in third place, appearing at the start of 7.0 percent of the briefs in the study. The Office of the Solicitor General is especially fond of beginning with “Whether,” having done so in 94.1 percent of its briefs. This research suggests that beginning with “Whether” is safe, and that as with other elements of Questions Presented, the choice of an opening word is a matter of style that rests squarely within your discretion: almost 40 percent of briefs used a different convention, and briefs in other courts likely reflect an even greater variety of opening words. One pithy Question, for instance, asked “Are human genes patentable?”

^Q.

Do all motions and briefs contain a Question Presented?

^A.

^{Most opening applellate briefs contain a Question. By contrast, motions do not typically include a Question Presented (but as noted earlier, lawyers often advise the judge immediately what issues the motion implicates). Reply briefs do not include a Question Presented; the opening brief already listed one. If you represent an amicus in a given court, consult the court rules to see whether you may reframe the Question Presented or whether you need to accept one of the party’s formulations of the issue.}

^Q.

What if my supervisor likes Questions that contain a single, long sentence?

^A.

^{Don’t jeopardize your career over a Question Presented.
As this chapter has suggested, crafting a Question Presented requires stylistic judgments and often reflects individual style. So follow your supervisors’ instructions and attend to their preferences. If the Question is horrendous, consider revising it based on one of the models in this book or some other example—and then note that you were impressed by that Question, so you mimicked it. If your boss rejects your gentle hint, drop the issue.}

^Q.

If a court uses its discretionary review to hear my client’s case, can I revise the Question Presented that the court decided to address?

^A.

^{Yes, so long as the substance does not change. The petitioner and respondent often rephrase the Question Presented so that it frames the case favorably to their respective clients. Also, certiorari petitions to the Supreme Court routinely include information in the Question Presented that is designed to make the Court yearn to hear the case, such as noting that the court below deviated from the approach taken by every other circuit court. (See footnote 5 in this chapter.) Once the Court agrees to hear the case, those certiorari-supporting details become largely irrelevant, so parties omit that information when they file their merits briefs. Parties may not raise additional questions or substantively alter the issue that the Court has agreed to hear (unless the Court asks the parties to brief an additional issue).}

^Q.	How many Questions Presented should I include?
^A.	^{The best advice I have seen comes from a Judge Ruggero Aldisert, who essentially warns lawyers not to raise more than four issues in a brief. He wrote:}
No. of Issues	Judge’s Reaction
³	^{Presumably arguable points. The lawyer is} primo.
⁴	^{Probably arguable points. The lawyer is} primo minus.
⁵	^{Perhaps arguable points. The lawyer is no longer} primo. Probably no arguable points.
⁶	^{The lawyer has not made a favorable initial impression.}
⁷	^{Presumptively, no arguable points. The lawyer is at an extreme disadvantage, with an uphill battle all the way.}
⁸	^{Strong presumption that no point is worthwhile.}[8]

This advice was offered for appellate briefs; trial motions often raise a large number of issues, but you can assume that trial judges, too, will bristle when they see that you ask them to resolve a heap of issues, so try to bundle issues together in trial motions to comply with Judge Aldisert’s advice. In a complicated case, you might need to surpass the benchmark proposed above, but do so cautiously.

^Q.

Can I assume that local rules about Questions Presented largely track federal appellate rules?

^A.

^{No. Check whichever rules govern your dispute. Here is an example of a rule that varies significantly from the federal appellate rules, which this chapter has focused on: in one of New York’s state appellate courts, briefs must contain “a concise statement, not exceeding} two pages, of the questions involved in the matter, with each question numbered and followed immediately by the answer, if any, from the court from which the appeal is taken....” N.Y. R. App. Fourth Div. 1000.4(f)(6) (emphasis added). The federal rules lack any analogous requirement. In addition to checking the rules, look at briefs filed in the court where you are litigating to see whether local lawyers do anything that reflects an unwritten local custom.

^Q.	Most of the Questions in this chapter are yes-no questions. But not Example 12.1.g. Do my Questions need to be framed as yes-no issues?
^A.	^{No, but nearly all Questions follow a yes-no format, so you will ordinarily adhere to that approach.}

1.This part of a brief is sometimes called “Statement of Issues” or “Issues Presented for Review.” This chapter generally uses the name “Questions Presented,” “Question,” or “issue.”

2.Judith Fischer, Got Issues? An Empirical Study About Framing Them, 6 J. A.L.W.D. 1, 3 (2009).

3.That choice, however, probably reflects the lawyers’ attempt to make this case look like an ordinary dispute about a statute, rather than a historic battle. The bigger the stakes, the greater the risk that the Justices would get cold feet.

4.Andrew L. Frey & Roy T. Englert, Jr., How to Write a Good Appellate Brief (1994), http://www.appellate.net/articles/gdaplbrf799.asp (last visited May 19, 2013).

5.This Question was written by Paul Clement, a former U.S. Solicitor General and one of the nation’s top lawyers. It starts slowly, but then makes the answer quite obvious. This Question arose in a petition for a writ of certiorari, which explains the reference to the circuit split. The version of the Question that arose during the merits stage of the case (i.e., after the Court agreed to hear it) dropped the following lan-guage: “and in acknowledged conflict with decisions from other courts of appeals.” That information was merely a ticket into the Court, showing that the lower courts were fractured in their approach to a legal issue. But once the Court decided to hear the case, the importance of the discord in lower courts dwindled in the merits brief.

6.I learned of this Question Presented by reading Wayne Schiess & Elana Einhorn’s article, Issue Statements: Different Kinds for Different Documents, 50 Washburn L.J. 341, 350 (2011).

7. Brady S. Coleman et al., Grammatical and Structural Choices in Issue Framing: A Quantitative Analysis of “Questions Presented” from a Half Century of Supreme Court Briefs, 29 Am. J. Trial Advoc. 329, 335 (2005).

8.Ruggero J. Aldisert, Winning on Appeal: Better Briefs and Oral Argument 131 (2d ed. 2003).

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Source: Messing Noah A. The Art of Advocacy: Briefs, Motions, and Writing Strategies of America's Best Lawyers. Aspen Publishers,2013. — 310 p.. 2013

FREQUENTLY ASKED QUESTIONS ABOUT QUESTIONS PRESENTED

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