How to frame a legal issue: Part II
Last time, we saw the great boon to clarity that resulted from rejecting the four traditional dogmas about framing a legal issue:
(1) Do it in a single sentence.
(2) Start with the word whether.
(3) Omit particulars about the problem.
(4) Always elicit yes for an answer, not no.
After years of experimentation, I discovered that the most reliable strategy is to reverse the first three dogmas and ignore the last.
Consider an example that follows the four dogmas: “Whether Milstern Corp.’s discharges are legal?” That says very little. It could be an employment case. But it’s not. You could add a little content by elaborating slightly: “Whether Milstern Corp.’s discharges of effluents into the water table are legal?” Still, the issue is unenlightening.
Many lawyers would add a citation, making the statement even less appealing: “Whether, pursuant to COMAR 26.08.03.06, Milstern Corp.’s discharges of effluents into the water table are legal?” Readers must go elsewhere to discover what the statute says and what Milstern actually did. This would take many minutes of concentrated effort and many pages of reading.
My quest was for an issue-framing technique that would result in an issue statement that could be readily understood in one reading. All the examples above would flunk that test. In any other field, no serious writer would accept opening paragraphs that are incomprehensible until you read further into the piece.
Let’s try a version that adheres to the first two dogmas but rejects the third: “Whether Milstern Corp., when from May 16, 2021, to June 1, 2022, in accordance with its discharge permits it discharged into the water table effluent that contained chlorine-containing products without any addition by Milstern of chlorine or chlorine-containing products but rather effluent consisting of unaltered municipal tap water as delivered by the city to its utility users, violated COMAR 26.08.03.06?”
That’s no joke. Many lawyers submit briefs with similar issue statements. Just ask any judge. A big part of the problem is the embedded clause between the subject and the verb—a 54-word interruption in the syntax.
We’re no closer to our goal of a comprehensible issue. So let’s reject all the dogmas and instead do these things:
(1) Break the issue statement into separate sentences.
(2) Establish a legal and factual predicate initially, and then pose a short question at the end.
(3) Omit whether altogether.
(4) Omit statutory citations from the issue statement.
(5) Keep the whole thing reasonably short. (After years of experimentation, I established an upper word limit of 75.)
Here’s the do-over: “Maryland law prohibits the discharge of effluent to which a permit-holder has added chlorine or chlorine-containing products. Milstern Corp., a permit-holder, discharged unaltered municipal tap water containing chlorine that had been added by the city, not by Milstern. Were these discharges prohibited?” That’s 42 words almost anybody can understand. If you’re a judge, you know exactly what you’re looking for as you read further.
Notice something: That issue is organized syllogistically. It begins with a legal rule (a major premise), then states a fact (a minor premise) and then asks a short question (from which the reader can draw a conclusion). It would make Aristotle, the father of syllogisms, proud.
Mind you, it took me seven years to develop this technique. At first, I didn’t even realize I was writing syllogisms with question marks at the end. A Los Angeles lawyer showed me that in the early 1990s.
In the 30 or so years since, I’ve coached tens of thousands of lawyers and judges in writing syllogistic issue statements, which I call deep issues. The phrase denotes the “deep structure” of a legal problem, which inevitably entails the interplay between major and minor premises. To qualify as a deep issue, each problem must be stated in separate sentences, but all told, it mustn’t exceed 75 words.
Over time, I’ve come to believe that if you can’t state a legal issue in 75 words, you don’t have a firm grasp of the problem. Or maybe you lack the skill of accurate summarizing.
Quibbles with the strategy
Are there objections? None that cut to the quick.
Some litigators say they don’t like the question mark at the end. Instead, they want an assertion. To them, an “issue” is something like this: “The city has violated the Voting Rights Act by failing to publish its newsletter bilingually.” But that’s just an assertion, not an issue statement. It’s more like a point heading. Issues, by contrast, are questions that judges are to decide. Actually, the question mark contains persuasive efficacy and invites readerly participation: It draws in the reader who has already been given the keys to answer the question.
For the example just given, the deep issue would read this way: “Section 2 of the Voting Rights Act requires Texas cities conducting elections to publish all election-related information in both English and Spanish. The city of Middlemarch publishes all official election-related materials in both English and Spanish, but it also publishes a community newsletter that contains election-related information in English only. In doing so, has the city violated the act?” That concise statement, in 59 words, tells you the essentials of the case. You’re primed to read further.
Others will object, saying that in some legal fields, 75 words aren’t enough. Sometimes there are multifactor tests that go into the major premise. Fair enough, but I’ve never encountered the issue that must exceed 75. Perhaps it exists. Yet in the many thousands of deep issues I’ve worked on, I haven’t seen it.
Consider this example: “Under the Younger abstention doctrine, federal courts refrain from hearing cases when a related state case (1) is ongoing, (2) involves important state interests and (3) affords an adequate opportunity to raise federal claims. Here the tribe has filed parallel state-court proceedings, those proceedings involve the state’s ability to assess taxes, and the tribe’s federal claims have already been raised there. Should the court abstain from proceeding?”
In the middle of the brief, each of those ideas must be supported and explained. That’s what the middle is for. Ineffective advocates, though, would abjure the concise issue statement as given and let the brief become “all middle”—a slog for the judicial reader.
If you give it a fair shot, I think you’ll come to like the deep issue. It promotes clear thinking about legal problems. Put a deep issue alongside any of the “traditional” types, and I think you’ll see it wins every time.
The most important thing to do at the outset of any persuasive or analytical writing is this: State the problem clearly. If you don’t do that on Page 1, you flunk the crucial test of clarity. The deep issue will help you be consistently clear.
This story was originally published in the February-March 2023 issue of the ABA Journal under the headline: “Achieving Clarity: How to frame a legal issue: Part II.”
Bryan A. Garner is the president of LawProse Inc.; distinguished research professor of law at Southern Methodist University; the author of The Winning Brief; the co-author of Making Your Case: The Art of Persuading Judges; and the longtime chief editor of Black's Law Dictionary.
This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.