Guidelines for Writing Issue Statements


Recently, I examined issue statements (sometimes called "Questions Presented") in briefs filed in six states' highest courts.  I found that lawyers use a variety of formats for writing them.  For example, some follow the traditional guideline to express each issue in a single sentence, while others write multi-sentence issue statements.  I also found some issue statements that were verbose and confusing, as well as others that were clear and persuasive.  Here's one of the most cumbersome ones I found:


            Whether the trial court abused its discretion in finding that there was no confidential communication or attorney-client privilege between Mrs. Lynch and Attorney Julie Wills regarding the deed transaction that is the [sic] and whether the court commited [sic] error by allowing Attorney Julie Wills to testify over objection of Mrs. Lynch about Mrs. Lynch's instructions and expressed intent and about her competence at the time of the execution of the deed which the Plaintiffs Lynch seek to set aside on grounds of fraud, deceit, trickery and coercion (C 1, 2), when Ms. Wills was the attorney who prepared the deed that Plaintiffs Lynch seek to set aside and who also was the notary who completed the notary's acknowledgment in that deed certifying that Juanita Lynch, who was known to her, acknowledged before her on August 30th, 2004 that being informed of the contents of the conveyance, she executed the same voluntarily on that date and when Defendant was present during the meetings between Mrs. Lynch and Attorney Wills where the discussions about Mrs. Lynch's intentions were had and when instructions were given by her for preparation of the deed.


           That jumble of words is likely to repel a judge, who may simply be unwilling to invest the effort needed to unscramble it.  The lawyer could profitably have devoted some time to editing it.


            Here's an example of a more succinct and effective issue statement, from a brief in the United States Supreme Court case Dusenberry v. U.S. :


            Whether the federal government violated the Due Process Clause of the Fifth Amendment by failing to give actual notice to an inmate in its own prison system before it forfeited the inmate's property for its own benefit.


            These examples lead to two suggestions for writing a good issue statement:


            1.  Writing an effective issue statement takes time. Put sufficient effort into editing it, resisting the temptation to write it in a rush at the last minute. 


            2.  Clarity and succinctness are of key importance.  As Justice Antonin Scalia and Bryan Garner recently stated, clarity "trumps all other" attributes of good brief writing.  (Making Your Case: The Art of Persuading Judges 107 (2008)).  Clarity is especially important in the issue statement, which frames the controversy for the court and is one of your first chances lead the court toward the conclusion you want.


            More suggestions for issue statements will follow in this space.

            Click here to read the article reporting the results of this study.