24 Sep How to Write Effective Questions Presented: Part 2
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) As we discussed in our last post, 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 once again 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.”
There are two schools of thought about how to phrase a Question Presented. One school starts the Question with “[w]hether” and includes all of the relevant facts in a single sentence. In Making Your Case: The Art of Persuading Judges, Bryan Garner and the late Justice Scalia say that this type of statement “is often a rambling statement that no mortal reader could wade through.” Here is an example of this type of issue statement:
“Whether there was a violation of the OSHA rule requiring every incident-investigation report to contain a list of factors that contributed to the incident, when the investigation report on the June 2002 explosion at the Vespante plant listed the contributing factors in an attachment to the report entitled “Contributing Factors,” as opposed to including them in the body of the report?”
The other type of Question Presented is called the “deep issue.” It contains within it the syllogism that produces your desired conclusion. Converting the issue statement above into a deep issue statement produces the following:
“OSHA rules require every incident-investigation report to contain a list of factors that contributed to the incident. The report on the June 2002 explosion at the Vespante plant listed the contributing factors not in the body of the report but in an attachment entitled “Contributing factors.” Did the report thereby violate OSHA rules?”
Which type of issue statement do you prefer?
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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