Section 12.1 Short, Neutral Questions
Takeaway point 12.1: Most lawyers use, and many judges expect, short and almost neutral Questions Presented: this is the “safe” way to write a Question Presented.
The most typical Question Presented is short and neutral — or almost neutral.
We begin by considering some examples of that approach. As you review them, recall from the chapter overview that the ideal question is precise, short, persuasive, informative, pellucid, and beneficial to the lawyer’s credibility.That Question has never been written. Questions Presented entail difficult tradeoffs, so lawyers need to compromise on one or more of those goals. The examples in this section excel at brevity and at one or more other categories; some of them, however, make difficult compromises on the other criteria. We begin with the worst Question in this chapter, which is also the shortest.
| Example 12.1.a | Is this dispute moot? |
This Question tells the judge nothing about the case. What happened in the dispute? Who are the parties? What sort of legal argument is involved? Why might the dispute be moot? What is the standard for mootness? Notice, too, that this Question uses a question mark; ironically, many Questions Presented are not framed as questions.
With just a little more information, however, Questions Presented can frame the legal issue helpfully. Here is another short, neutral Question Presented, which is superior to the first example (but still flawed).
| Example 12.1.b | Whether Congress has the power under Article I of the Constitution to enact the minimum coverage provision of the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119, as amended by the Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029. |
Can you tell which side submitted this Question? It’s certainly neutral — at least at a quick glance. And it does a number of things well. It introduces the basis of the legal challenge: whether Congress had power under Article I of the U.S. Constitution to enact this law. And, to remain concise, it conflates two distinct issues raised by the case: whether Congress had the power to enact this law under (i) the Commerce Clause or (ii) the tax power. Because this brief is, in fact, trying to invalidate the disputed law, it avoids airing both theories under which the government sought to defend the statute. And finally, by adding a precise citation and by framing the issue neutrally, the brief builds the lawyers’ credibility.
But this Question Presented, like all others, entails tradeoffs. The citation to the Act is longer than the rest of the Question, and readers may lose their focus midway through. It is also dry, so much so that readers might not realize immediately that the Question comes from a hugely important case — the battle over President Obama’s signature program, the Affordable Care Act.3 Moreover, the Question tells us nothing about what the law actually does, but using the word “minimum” makes the law sound modest, which conflicts with the brief’s goals. And it certainly does nothing to make readers want to strike down the law. Finally, the issue is framed so that the lawyers win if the Question is answered negatively; by contrast, psychology research has led some writing experts to favor issue statements that let your client win if the Question is answered affirmatively because most people like to answer questions affirmatively. (But I doubt that this choice matters in law.) In sum, this Question is capable and professional, but it hardly primes readers to want to resolve the case in either side’s favor — much less to yearn to read the brief.
Framing the issue in a punchy way matters even more in two specific situations.
First, an issue should be catchy when a court is busy or is likely to be disinterested in your issue. For instance, harried trial judges do not want to spend their time on intricate discovery battles, so you may need to market the issues raised by uninspiring motions in a way that will intrigue the judge. See generally Chapter 14 (offering advice about how to increase a court’s focus on a quotidian motion.) And second, when an appellate court has discretion about whether to hear a case, your Question Presented may be the only part of the brief that judges or clerks read; thus, the Question needs to state the issue in a way that compels readers to plod ahead. If the Question fails to allege some meaningful legal problem, for instance, judges may never look at the pages that follow. But a request that a court review another court’s decision need not scream.The next example illustrates that principle. It tries to obtain a writ of certiorari while also preserving the lawyers’ credibility and an appearance of neutrality. This Question tries to seem even-handed, but it also tries to motivate readers; you may notice that it is, by design, less neutral than it seems if you read it quickly.
| Example 12.1.c | Whether the district court violated petitioner’s Sixth Amendment rights by limiting his cross-examination of a government witness. |
This question is short. And it is framed in a fairly neutral style, although it hints gently at an answer. (Read it again if you don’t see immediately which way it leans.) It tells us who did what to whom: the district court cut off the defendant’s cross-examination of a witness. The question orients readers, letting them know which facts to focus on in the ensuing Statement. And although the lawyers do not specify either what the Sixth Amendment provides or which of its four provisions they are invoking, they made the reasonable judgment call that Supreme Court Justices would be familiar with the Sixth Amendment and would recognize that the challenge arose under the Confrontation Clause, which lets defendants confront their accusers.
This is a short, effective Question.But it, too, makes tradeoffs. Was the cross-examination of an inconsequential or major government witness? How limited was the cross-examination? Presumably, after all, a defendant could not question a witness indefinitely to prevent the jury from ever beginning its deliberations. Is there any reason to think that the district court abused its discretion in managing the trial? Brevity trumps comprehensiveness in this Question.
There is more. This Question reflects the importance of knowing one’s audience: the Supreme Court does not take run-of-the-mill cases in which a defendant thinks the trial judge mismanaged the case. Thus, the brief tries to elevate the case from a typical abuse-of-judicial-discretion case (i.e., we think we should have had a little extra time for cross-examination) into a major constitutional issue (i.e., whether the Constitution imposes meaningful limits on a trial court’s ability to curtail cross-examination). The lawyers needed to heighten their claim to catch the Court’s attention. The Court, however, saw through this attempt to frame a mundane dispute into a constitutional clash, and it denied certiorari. This Question is nevertheless a good example of how to play a losing hand capably: the lawyers had little to work with, but they made their argument seem important.
Later in this chapter, we see how to organize multiple Questions, but lawyers sometimes eschew that approach and cram multiple issues into a single Question Presented. For instance, the Question about the Affordable Care Act (Example12.1.b) refers to “Congress’s power under Article I of the U.S. Constitution.” But there are ten sections in Article I. The lawyers deliberately lumped together multiple congressional powers to avoid over-specifying the basis of Congress’s power. If you are too vague, courts won’t know your theory; if you are too specific, you might omit a winning argument. We see another version of this tension next.
| Example 12.1.d | Whether the Federal Communications Commission’s current indecency-enforcement regime violates the First or Fifth Amendment to the United States Constitution. |
This Question bundled two separate theories: that the restrictions on indecency violated the Free Speech Clause and that the vague restrictions failed to provide fair warning under the Due Process Clause as to when the government would penalize misconduct.
Most lawyers would divide these issues; the government’s decision to merge them was probably designed to maximize the chances that the case would catch the Court’s attention while keeping the Question trim.Before we evaluate more aggressive Questions, here are several other short, mostly neutral Questions.
| Example 12.1.e | Section 704(b) of Title 18, United States Code, makes it a crime when anyone “falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States.” |
| The question presented is whether 18 U.S.C. § 704(b) is facially invalid under the Free Speech Clause of the First Amendment. |
| Example 12.1.f | Whether threatening a robbery victim with a firearm constitutes “physical” restraint of the victim requiring enhancement of a defendant’s sentence under United States Sentencing Guidelines § 2B3.1(b)(4)(B) and related Guidelines provisions. |
| Example 12.1.g | Whether the decision of a court of appeals to stay an alien’s removal pending consideration of the alien’s petition for review is governed by the standard set forth in 8 U.S.C. § 1252(f)(2), or instead by the traditional test for preliminary injunctive relief. |
| Example 12.1.h | Whether a municipal personal property tax that falls exclusively on large vessels using the municipality’s harbor violates the Tonnage Clause of the Constitution, Art. I, § 10, Cl.3. |
In general, new lawyers favor the approach described above: short and almost- neutral. But as we see in the next section, some lawyers tweak this approach and make their Questions Presented short and aggressive.