Section 12.4 The Massive, Single-Sentence Question
Takeaway point 12.4: Avoid behemoth sentences in your Questions Presented.
The first three subsections presented viable ways to write your Questions Presented. Short or long, tepid or aggressive: all are reasonable options.
But this section urges you — begs you — not to follow a bewildering convention that lawyers often follow when they write Questions Presented. They squeeze a massive Question into a single sentence, like an elephant crammed into a Speedo. For example, the following is a real Question Presented.
| Example 12.4.a | Did the Court of Appeals err in holding that the prosecution discharged its affirmative burden of establishing that the appellant’s confession was not the product of his illegal arrest and detention and, therefore, was admissible against him, by concluding that the act of police interrogators in confronting the appellant with the inculpatory admissions of an alleged co-defendant prior to eliciting appellant’s confession, constituted an adequate “intervening event” which supposedly broke the causal chain between his illegal arrest and detention rendering his confession “a product of a free will,” notwithstanding the fact, [sic] that the record irrefutably demonstrates that the appellant was arrested illegally, without the benefit of a warrant issued by a neutral and detached magistrate, in violation of Chapter 14 of the Code of Criminal Procedure, was thereafter interrogated while illegally detained, was, at all times during his 22 hours at the homicide division, in the presence and under the control of the police, was never taken to a magistrate, never spoke with a lawyer and was misled by the interrogators about what he was actually being charged with?[6] |
Don’t ever write a Question like this one. It is incomprehensible to you, and it is just as incomprehensible to judges.
Your writing style in a Question Presented should resemble your style in other parts of the brief.The line, however, between incomprehensible Questions and powerful Questions is unclear. Some lawyers use long single-sentence Questions effectively, and two examples appear below. Just remember that things go haywire somewhere between the length of the above Question and the length of the following Questions.
| Example 12.4.b | Whether the government violates a federal contract employee’s constitutional right to informational privacy when it asks in the course of a background investigation whether the employee has received counseling or treatment for illegal drug use that has occurred within the past year, and the employee’s response is used only for employment purposes and is protected under the Privacy Act, 5 U.S.C. 552a. |
Before joining the Supreme Court, Elena Kagan and her team of lawyers at the Office of the Solicitor General drafted the above question and won the case without any dissenters. Your Question Presented should hint, as the above Question does, at the type of decision that you want to obtain. For instance, if the contractors had access to classified information, the Question have sought to win on narrower grounds by limiting the government’s right to conduct these background tests to contractors who have access to information. A victory on these narrower grounds might have been even more probable, but it would have been less desirable because it would secure comparatively limited rights for the government. Thus, the above Question reflects that, in addition to the tough tradeoffs mentioned throughout this chapter, you need to make tough choices about what relief you will seek. The Question is long, but it does not overwhelm readers.
But, sometimes you to overwhelm readers. For instance, if you are trying to show that the trial court had enough evidence to reach its conclusions, you might want to bombard readers with evidence even if the individual details blur together.
For instance:
| Example 12.4.c | Whether the district court committed clear error in finding that Barhoumi was part of an al-Qaida-associated force engaged in hostilities against the United States or its coalition partners in Afghanistan, where the Government presented evidence that Barhoumi traveled to Afghanistan to obtain terrorist training to wage jihad; received extensive training in weapons, explosives, and other military skills at different terrorist training camps, including a camp affiliated with Abu Zubaydah, and ultimately became a trainer himself; fought against U.S. forces in Afghanistan before retreating with the assistance of Abu Zubaydah and his affiliates; fled Afghanistan and regrouped with Abu Zubaydah in Pakistan; and was captured at a safehouse where Abu Zubaydah had gathered a cadre of men, including Barhoumi, to carry out future attacks against U.S. and coalition forces. |
The length of the above question actually helps it. The evidence overwhelming because the lawyers present it in such rapid succession. The blast of information is designed to convince readers that the trial court had plenty of evidence to support its conclusion — whether or not readers absorb each detail.
In general, however, the sentences in your Questions Presented should not run longer than ordinary sentences.