Section 12.3 The Trend Toward Longer Questions Pdecision overturning that verdict.resented
Takeaway point 12.3: If your legal issue is complicated or if you favor an aggressive style, consider using a longer Question Presented that mentions some helpful authorities, some helpful facts, or both.
With one exception, the short examples that this chapter has presented so far contain only one sentence. But, when permitted by court rules, many top lawyers favor longer Questions Presented. Here is an example from a brief that this book has discussed several times.
| Example 12.3.a | Justice Brent Benjamin of the Supreme Court of Appeals of West Virginia refused to recuse himself from the appeal of the $50 million jury verdict in this case, even though the CEO of the lead defendant spent $3 million supporting his campaign for a seat on the court — more than 60% of the total amount spent to support Justice Benjamin’s campaign — while preparing to appeal the verdict against his company. After winning election to the court, Justice Benjamin cast the deciding vote in the court’s 3–2 decision overturning that verdict. The question presented is whether Justice Benjamin’s failure to recuse himself from participation in his principal financial supporter’s case violated the Due Process Clause of the Fourteenth Amendment. |
Even readers who know nothing about that case now grasp what it is about: they’re oriented. And they would probably conclude that Justice Benjamin isn’t the world’s most ethical jurist, so they’re also motivated. Orienting and motivating a judge (in three sentences) is a great start. This approach can be incredibly powerful, as we see above.
But that power comes with risk. Lengthier Questions increase the chances that lawyers will undermine their credibility or bore judges. The above example is three times the length of a typical Question Presented.
Students and lawyers with whom I have discussed this example react in mixed ways. Some love it and believe it wins the case, landing a knockout punch on the first page. Others think it hobbles the lawyers’ credibility by framing the issue so aggressively. Different lawyers will favor different approaches; just realize that the length and aggression may irk some readers.Many legal writing commentators encourage advocates to adjust this approach and to build Questions Presented around modified syllogisms. A syllogism is a logical device in which the first two sentences lead inexorably to the conclusion in the third sentence:
A contract requires consideration.
Jane provided no consideration to John.
Therefore, Jane and John have not entered into a contract.
A modified syllogism presents the last statement as a question:
A contract requires consideration.
Jane provided no consideration to John.
Have Jane and John entered into a contract?
This approach makes the answer to a Question obvious.
In practice, however, few lawyers follow this form. And for good reason: these sorts of Questions Presented are usually ham-fisted because they become tautological. I would use this approach only for a case in which the right legal outcome really was crystal clear. Some of the nation’s best advocates, however, have tweaked this approach by trying to obscure the fact that their Question is self-proving. Let’s scrutinize an impressive example of this approach from a brief by John Roberts (from his time in private practice) that persuaded the Supreme Court to reverse a lower court’s decision.
| Example 12.3.b | A jury awarded respondents $55 million in compensatory damages, roughly $53 million of which was for “loss of consortium” and “pain and suffering.” Petitioners appealed, arguing that the award — the largest by far in Indiana history — was grossly excessive. In doing so, they urged the Court of Appeals of Indiana to conduct a “comparability analysis,” an approach endorsed by many federal and state courts whereby damage awards in similar cases are compared to determine whether a particular award is excessive. The Court of Appeals refused to adopt this method of review, ruling that it would improperly second-guess jury decisions “in a manner not permitted by the Seventh Amendment.” |
| Whether the Court of Appeals correctly held — in clear conflict with this Court’s established precedent that the Seventh Amendment applies only to the federal courts — that the Seventh Amendment constrains a state appellate court when reviewing a jury award for excessiveness? |
The Question includes a slew of handy details, such as that the palintiffs received $53 million for, primarily, “loss of consortium,” which will make many readers skeptical, especially given that these were compensatory damages. And the Question camouflages the following syllogistic reasoning: (i) the Seventh Amendment does not constrain state courts, (ii) a state court in Indiana said that it was constrained by the Seventh Amendment, (iii) did that court err? The entire first paragraph of the Question, in other words, is just a window dressing.
Do you think the case can really be this simple? If the Indiana court had directly violated a crystalline holding of the Supreme Court, it is unlikely that a full briefing process would need to occur; courts have the power to reverse summarily decisions that directly conflict with established precedent. So the lawyers are glossing over something, and the justices know it.
Notice that the Question doesn’t tell you what the defendants did to trigger such a massive award. Rather, the lawyers present their clients as victims (of an unjust damages award) rather than wrongdoers. Whenever possible, make your client the proverbial good guy, as this Question does. The victims-and-villains strategy that Chapter 1 explored is relevant throughout your brief.
Does this Question slant the issue too far toward one side? Two elite appellate lawyers observed that “it is a mistake — and a common one — to slant the formulation of the issue too obviously in your own favor.”4 Likewise, new lawyers often bristle at the previous Question, finding it too pushy, too biased.
But while it may rest at the outer edge of acceptable aggressiveness, don’t overlook the strategic benefit of letting judges know exactly what your client is arguing and pressing them to see your case in your client’s way from the first page. Advocacy is acceptable, so long as the Question Presented is also accurate. Aggressiveness is a hallmark of many of the nation’s top lawyers, and it is reasonable to wonder whether they are successful because they are aggressive.Here are several other examples of aggressive Questions Presented. I include Questions of different lengths and different levels of aggression; as you read, assess the point (if any) at which you think a Question goes too far or runs too long; as mentioned earlier, this chapter aims to have you decide for yourself how feisty and how long your Questions should be.
| Example 12.3.c | In this case, the Illinois Supreme Court held that a state law transferring the revenues of four Illinois casinos to five Illinois horse-racing tracks is categorically not susceptible to challenge under the Takings Clause of the Fifth Amendment because, in that court’s view, “regulatory actions requiring the payment of money are not takings.” The question presented is: |
| Whether the State’s taking of money from private parties is wholly outside the scope of the Takings Clause. |
| Example 12.3.d | 18 U.S.C. § 924(c)(1)(A) criminalizes the “use” of a firearm during and in relation to a drug trafficking offense and imposes a mandatory consecutive sentence of at least five years’ imprisonment. In Bailey v. United States, 516 U.S. 137, 144 (1995), this Court unanimously held that “use” of a firearm under § 924(c)(1)(A) means “active employment.” The question presented in this case is: |
| Whether mere receipt of an unloaded firearm as payment for drugs constitutes “use” of the firearm during and in relation to a drug trafficking offense within the meaning of 18 U.S.C. § 924(c)(1)(A) and this Court’s decision in Bailey. |
| Example 12.3.e | Petitioner admitted that she tried to injure her husband’s paramour by spreading toxic chemicals on the woman’s car and mailbox. Instead of allowing local officials to handle this domestic dispute, the federal prosecutor indicted petitioner under a federal law, 18 U.S.C. § 229(a), enacted by Congress to implement the United States’ obligations under a 1993 treaty addressing the proliferation of chemical and biological weapons. Facing a sentence of six years in prison, petitioner challenged the statute and her resulting conviction as exceeding the federal government’s enumerated powers and impermissible under the Tenth Amendment. Declining to reach petitioner’s constitutional arguments, and in acknowledged conflict with decisions from other courts of appeals, the Third Circuit held that, when the state and its officers are not party to the proceedings, a private party has no standing to challenge the federal statute under which she is convicted as in excess of Congress’s enumerated powers and in violation of the Tenth Amendment. |
| The question presented is: | |
| Whether a criminal defendant convicted under a federal statute has standing to challenge her conviction on grounds that, as applied to her, the statute is beyond the federal government’s enumerated powers and inconsistent with the Tenth Amendment.[5] |