Legal Writing Tip: Start Your Brief With the “Deep” Issue

Savannah Blackwell, BASF Bulletin Contributor

November’s column discussed the importance of drafting a clear and concise statement of the main legal question in the case.

Framing the issue effectively is, perhaps, the most critical step in the process.

The less time the judge has to spend trying to figure out what she has to answer to decide the case, the more time she can spend appreciating the strength of your arguments.

So start your brief with a formulation of the deep issue.

writingThe deep issue is “the ultimate, concrete question that a court needs to answer to decide a point your way,” as legal writing expert Bryan Garner explains in The Winning Brief, 3d Ed. “The deep issue is the final question you pose when you can no longer usefully ask the follow-up question, ‘And what does that turn on?’”

It should take the form of a syllogism—which is, “a deductive scheme of a formal argument consisting of a major and minor premise, and a conclusion,” as Webster’s online dictionary puts it. Here’s the venerable word definer’s illustration: “Every virtue is laudable. Kindness is a virtue. Therefore, kindness is laudable.”

Don’t try to state the deep issue in one sentence. And don’t begin with the word “whether,” as doing so often results in vagueness and a disorderly presentation of the facts. Keep the (citation-free) statement to 75 words, or you’ll risk losing the reader’s attention. If you have more than one issue, number them and give each a neutral heading.

The statement should flow from law, to fact, to conclusion. In persuasive writing, the major premise is the controlling law. The minor premise consists of the facts that put the major premise in context. Make the minor premise non-conclusory, and as concrete and specific as possible to your case within the 75-word limit; have it read like a mini story.

Here’s a 61-word example from The Winning Brief on a question of constitutional law:

The Supreme Court has held that the Fourth Amendment is not violated when a police officer makes a custodial arrest after seeing the person commit a misdemeanor traffic offense in a public place. (major premise) A police officer saw John Smith driving on Main Street without headlights after dark—a misdemeanor. The officer arrested him. (minor premise) Did the arrest violate John Smith’s Fourth Amendment rights? (conclusion)

As in the example, the conclusion should be phrased in the form of a question prompting a “yes” or “no” answer, depending on whether the matter calls for a positive or negative syllogism. (An example of a negative syllogism is, “Only A is B. This case is not A. Is this case B?” (No)).

Legal writing experts—judges and advocates alike—say the best issue statements end with question marks, because a genuine question carries an air of objectivity, even if it is somewhat skewed. The advocate posing a bona fide question sounds credible and reasonable—not like she’s trying to push an answer on the court that may or may not be right and fair. Instead, she is seizing the issue by forcing the opposition to explain how the answer could be something other than the one she’s suggested.

Attorney Savannah Blackwell is a former news reporter who covered government and politics for more than a decade, mostly in San Francisco. She can be reached at savannah.blackwell@gmail.com. Follow her on Twitter at @SavannahBinSF.