Framing Issues in Appellate Briefs

The last post listed several ways to state an issues on appeal. This one discusses recommendations found in Wayne Schiess and Elana Einhorn, “Issue Statements: Different Kinds for Different Documents,” 50 Washburn Law Journal 341 (2011); and Judith D. Fischer, “Got Issues? An Empirical Study About Framing Them,” 6 JALWD 1 (2009).

The Schiess and Einhorn article advocates tailoring the form of the statement to the audience. For example, they suggest the multiple-sentence statement, that includes factual information, for intermediate appellate briefs that turn on applying settled law to the facts. For a state’s highest court, they advocate the single sentence, framed broadly and abstractly, because it focuses the court’s attention on a generally applicable question of law.

Fischer’s article has more specific recommendations:

  • use interrogatives and not “whether”
  • consider a factual introduction to the issues
  • refer to parties by their roles unless they have already been identified in the brief
  • include relevantly legal facts unless the question is a pure issue of law
  • make the issue answerable with a yes or no and not an either-or.

And what does the South Carolina Supreme Court think about all of this? The Justices are split on how they frame issues in their opinions. A review of this year’s decisions reveals that Chief Justice Toal is the only Justice who uses the one sentence “whether” formula.

Justices Pleicones and Hearn tend to favor the one sentence interrogatives that begin with did, does, or was. The South Carolina model form likewise uses the single sentence question beginning with “did.”

Justices Beatty and Kittredge did not include a separate issue statement in their current 2012 opinions. Akin to Bryan A. Garner’s “deep issue” approach, their opinions and the other Supreme Court opinions that lack a separate issue statement identified the issues in the opinion’s introduction by stating the parties’ positions.

What is the best issue statement that you have read? The worst? Please let me hear from you. You may reach me at www.attorneyroberthill.com.

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