Academic

Faculty Blogs: More about Issue Statements

        The lawyers' issue statements in my study of recent briefs were written in several formats.

         Most individual issues consisted of a single "sentence." These appeared in three basic formats:

            1.  The interrogative format. 

Example:  Is the owner of a house liable in damages for injuries to a delivery person who fell on snow that had been on the property's private front walk for thirty hours? 

            This format often begins with a verb (such as "can" or "is").  Sometimes it begins with an introductory phrase, such as "Under Ohio contract law, . . . ."

            2.  The "whether" format. 

Example: Whether the owner of a house is liable in damages for injuries to a delivery person who fell on snow that had been on the property's private front walk for thirty hours.

          Technically, the "whether" statement is not a sentence but a fragment, and it can lead to awkward phrasing.  But this venerable format is well established and is even preferred by some courts.  In each state I studied, at least 30% of the issues began with "whether."             

          Those who choose the whether structure should note that it is a declarative statement and should end with a period, as in the example above.

            3.  The declarative format. 

Example:  The owner of a house is liable in damages for injuries to a delivery person who fell on snow that had been on the property's private front walk for thirty hours. 

            At 12% of the single-sentence issues, this was the least common format.

            A smaller number--4.6%--of individual issues contained multiple sentences.  And 2.3% of the issue sections contained separate, substantive introductory material. 

            Suggestions.  I suggest that a brief writer consider using the most common format: state each separate issue as a single sentence.  That format disciplines the writer to boil the issue down into a short, comprehensible statement.  And, depending on the practice in the particular court, consider avoiding the awkwardness of the "whether" format by writing a question ending with a question mark.  

            The multi-sentence format has some adherents, but it remains significantly less common than the single-issue format.  The brief writer might use it if an issue is particularly complex and not susceptible of expression in a single sentence.

Full post as published by University of Louisville Law Faculty on February 23, 2009 (boomark / email).