Overview on Stating Issues on Appeal

How do you state the issues that you want to raise on appeal? Rule 208, SCACR, grants the writer flexibility on this point. It says,”The statement shall be concise and direct as to each issue, and may be stated in question form. Broad general statements may be disregarded by the appellate court.”

Appellate PracticeChief Justice Toal advocates the Goldilocks approach. One should avoid issue statements that are so general that they do not tell the reader what he or she must decide, and those that are so excessively detailed that they are difficult to comprehend. Jean H. Toal, et. al., Appellate Practice in South Carolina (2d ed. 2002) at 210-211.

Where is the happy median? One way is to concisely work into the issue statement the type of order being appealed, some factual context, and the standard of review. Which statement is more helpful:

  • Did the trial court err in granting summary judgment?
  • Did the trial court err in granting summary judgment where the plaintiff presented evidence that the driver ran the red light?
  • Is testimony that the driver ran the red light the scintilla of evidence sufficient to defeat the summary-judgment order?

A familiar style in presenting this information is the one sentence statement beginning, “Whether . . . ..”  This form is criticized because it often contains awkwardly constructed subordinate clauses. Briefs that the Solicitor General’s Office filed this year in the United States Supreme Court avoid such awkwardness by introducing the “whether” issue with a brief paragraph on the facts. Beginning the single sentence with “Does,” “Did” or “Was” may also help clarify the issue and state it more concisely.

Another one sentence formula is “under-does-when.” The writer asks if under a certain rule, does a certain result follow when certain facts are present. The “under” clause states the major premise or rule, the “when” clause states the minor premise about the facts, and the middle “does” clause suggests the conclusion sought.

In contrast, Bryan Garner advocates a multi-sentence or “deep issue” approach. Under this approach, the issue statement begins with the rule or legal premise as a sentence, includes a second sentence on the minor premise or key facts, and ends with a conclusion cast in the form of a question. Garner explained this in his and Justice Scalia’s book, Making Your Case.

The next post discusses two articles on how to decide which form to use and how the Justices of the South Carolina Supreme Court frame their issue statements in their opinions.

How do you state your Statement of Issues? Please let me know at www.attorneyroberthill.com.




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