Monday, January 18, 2010

Like A Light Bulb Over My Head

I recently had an enlightening moment, almost like when a light bulb pops on over a character's head in a cartoon, while reading the attorney "self-help" book I had recently received as a gift, Making Your Case: The Art of Persuading Judges by Supreme Court Justice Antonin Scalia and legal writing expert Bryan A. Garner. This book offers great tips to improve your brief writing and oral argument presentation skills and I highly recommend it.

One of quite a few enlightening moments that occurred while reading this book revolved around a lesson in writing the Question Presented section of a brief. I, like most lawyers, had been trained to write the question presented by a case in a single, often run-on sentence, which as the authors noted often turns into "a muddle" which causes the reader to "forget the question by the time we reach the question mark."

Justice Scalia and Mr. Garner note that instead of a Question Presented like this:

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 authors note that a better way to present the question would be to break the issue down into sentences like this:

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?


In the above example instead of one 62-word sentence, you have three sentences averaging just 18 words. The information is presented in a clear and tight manner such that even readers unfamiliar with this area of law can easily understand the issue raised by the case.

Concisely, with regards to writing this section of a brief, the authors assert that the better strategy is indeed to break up the question presented into separate sentences that all total no more than 75 words or so at the most. The first couple of sentences or so should be designed to follow a chronological order telling the story in miniature fashion, followed by the pointed question that emerges from that story.

Perhaps a way to ease yourself into this new way of writing the issue presented may be to continue, at least initially, to write out the question the old-fashioned run-on sentence way and then go back and edit down to two to three sentences followed by the pointed question.

I think this new format of the Question Presented is excellent advice and I note that, if it's not only acceptable to, but highly recommended by, Justice Scalia, I would hope that the writing of issues presented in this fashion would be well-received and appreciated by Judges reading our briefs.

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