Legal Writing Tip - Drafting Persuasive Questions Presented

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 As previously promised, here are some observations about drafting Questions Presented.

 

While there are several different formats traditionally used for Questions Presented, in my class, we practice drafting one that incorporates both the legal issue and key relevant facts.  The goal is to write a Question Presented that comports with the theory of the case and suggests the desired answer.  It is persuasive without being "argumentative."  Rather than use adjectives and adverbs, the Question Presented persuades through the choice of words and the choice of facts to emphasize.

Many factors, which are sometimes countervailing, can lend toward making a Question Presented persuasive.  Three interesting factors to consider are the length of the Question Presented, whether the Question Presented accurately represents the scope of the issues the court will review, and the framing of the Question Presented.

Generally a short question presented is easier for the reader to understand than a long one.  Sometimes, however, it is necessary to write a longer than ideal Question Presented in order to frame a question affirmatively or incorporate significant facts. 

Turning a Question Presented that suggests a "no" answer into one that suggests a "yes" answer can sometimes decisively change the persuasiveness of the Question Presented by casting it in a more affirmative light.  Doing so may, however, lengthen the Question Presented or broaden the scope beyond the limited issues that the court will actually consider.

In recent discussions with my colleagues and students, I have had the chance to see a concrete example of how considering these three factors can aid in drafting an effective Question Presented.  The brief the students are working on poses the following limited question:

"Whether the need to obtain clothing for Druce constituted an exigent circumstance under the Fourth Amendment to the United States Constitution."

Here is a Question Presented that mirrors the framing of the certified question.

Can the Government prove Fourth Amendment emergency circumstances to enter an arrestee's home when the arrestee, who was standing compliantly outside the home, refused consent to enter for the purpose of obtaining clothing?  

Here is one that frames the question affirmatively, rather than negatively.  It is, however, broader in scope than the certified question.

Is an individual's Fourth Amendment right "to be secure in [his] . . . house" breached by a police officer's warrantless entry into his home to obtain shoes, socks, and a shirt for him given that he expressly denied consent to enter, was arrested outside his home, and had knowledge of the surrounding terrain?  (This question provided courtesy of Connie Barr.)

Here are two that frame the question affirmatively and attempt to limit the Question Presented to the scope of the certified question.  They are rather lengthy.

Does the Fourth Amendment right to be free from unreasonable searches preclude the Government from asserting emergency circumstances to enter into an arrestee's home when the arrestee, who was standing compliantly outside the home, refused consent to enter for the purpose of obtaining clothing?

Is an individual's Fourth Amendment right "to be secure in [his] . . . house" breached by a police officer's warrantless entry into his home to correct perceived clothing exigencies by obtaining shoes, socks, and a shirt for him given that he expressly denied consent to enter, was arrested outside his home, and had knowledge of the surrounding terrain?  (This question provided courtesy of Connie Barr.)

While ultimately each of these Questions Presented is probably effective, thinking about these factors can aid in considering the possibilities and drafting a Question Presented with which you are satisfied.