09 Sep How to Write Effective Questions Presented: Part 1
Appellate Innovations is proud to feature occasional guest posts from appellate practitioners. Today’s post is by Lisa Solomon; you can find out more about her at the end of the post.
(2 minutes to read) All four Appellate Divisions follow the same rule (22 N.Y.C, R.R. § 1250.8) governing the form and content of briefs. In this post, we will address § 1250.8(b)(3), which requires that the appellant’s brief includes “a concise statement, not exceeding two pages, of the questions involved, set forth separately and followed immediately by the answer, if any, of the court from which the appeal is taken.” Practitioners generally entitle this section of their brief “Issues Presented” or “Questions Presented.”
It is important to limit the number of questions presented to your two or three strongest arguments. In fact, in his book, Winning on Appeal, the late Judge Ruggiero Aldisert, Senior United States Circuit Judge for the Court of Appeals for the Third Circuit provided the following “litmus test” for the number of issues in a brief:
|Number of Issues
Presumably arguable points. The lawyer is primo.
|Probably arguable points. The lawyer is primo minus.
|Perhaps arguable points. The lawyer is no longer primo.
|Probably no arguable points. The lawyer has not made a favorable initial impression.
|Presumptively, no arguable points. The lawyer is at an extreme disadvantage, with an uphill battle all the way.
|Eight or more
|Strong presumption that no point is worthwhile. To the lawyer: Go home. Do not pass “Go.”
In addition to signaling the judge that you don’t have meritorious arguments, including too many arguments in your brief may end up requiring you to ask permission to file an oversized brief, which judges, as a rule, don’t like to read.
In our next post on § 1250.8(b)(3), we’ll talk about how to structure the issues you decide to present.
Lisa Solomon is a freelance lawyer in Ardsley, New York who helps attorneys nationwide with all of their legal research and writing needs. If you need help drafting or editing an appellant’s or respondent’s brief in state or federal court, contact Lisa. You can download a free guide to working with freelance lawyers from, and view writing samples at, her website.
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