Got Issues? An Empirical Study about Framing Them
Judith D. Fischer*
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Grounded in framing theory and the analyses of judges and commentators, this article examines issue statements in a sample of recent briefs from six states. The data cover various aspects of issue statements, including sentence structure, length, and the most common beginning words. Issue statements from recent briefs provide examples throughout the discussion. The article concludes with recommendations for framing effective issue statements.
Table of Contents
I. Methodology
II. The study results
A. Succinctness
B. Clarity
C. Sentence structure
1. Single-sentence issues
2. Issues with sub-points or multiple sentences
D. Opening words
E. Reference to the parties
F. Inclusion of facts
G. Framing for persuasiveness
III. Conclusions and recommendations
Gertrude Stein asked, “ ‘What is the answer?’ . . . and when no answer came she laughed and said: ‘Then, what is the question?’ ” 1
Stein knew that framing a question is a necessary step toward resolving it. Judges and commentators recognize the same principle when they stress the importance of the issue statement (sometimes called the question presented)2 in an appellate brief. It provides the court’s first introduction to the case, and by conveying the substance of the question the court must decide,3 it offers “the lens through which the judge-reader filters the rest of the brief.”4 Some have even called the issue statement the most important part of the brief.5 It is a mistake, then, for a lawyer to miss this important opportunity to advocate by haphazardly writing the issue statement at the last minute.6
Framing theory, which has informed scholarship in several fields in recent years,7 helps explain why an issue statement’s wording is so important. Framing theory holds that people identify and label their experience through their mental frames.8 In his influential book on frame analysis, sociologist Erving Goffman defined frames as “schemata of interpretation” through which people “locate, perceive, identify, and label” experience.9 As political scientist James N. Druckman put it, a framing effect occurs when a speaker’s emphasis on certain considerations affects what others focus on in forming opinions.10 Frames are often expressed through language.11
Researchers have applied framing theory to show that frames affect how people see issues.12 This analysis has helped politicians influence public opinion by skillfully framing ideas.13 Similarly, a skillfully framed issue statement can help shape a court’s perceptions of an appellate case.
It is not surprising, then, to find abundant advice about how to frame an issue statement. That advice, however, is not always consistent. For example, some advise that an issue should be phrased as a question, often beginning with a verb like can or does,14 while others prefer a clause that begins with the word whether.15 Some say the statement should include enough facts to place the issue in context,16 while others prefer a more general statement.17 And some believe that an issue should be framed as a single sentence,18 while others prefer a multi-sentence format.19
Amid all this advice, there is little information about how lawyers are actually framing issues.20 To provide some data about current issue statements, this article reports a study of briefs written for six states’ highest courts.21 Section I explains the study’s methodology, and Section II presents its results and relates them to the literature on the subject. Section III concludes with recommendations for writing issue statements.
I. Methodology
This study covers issue statements from briefs filed with the highest courts of six states that vary in population, location, and degree of their courts’ influence. The sample includes three populous states, California, New York, and Illinois, whose respective ranks in population in the 2000 census were first, third, and fifth.22 It also includes medium-sized Alabama, which ranked twenty-third in population, and less populous Montana and Vermont, which ranked forty-fourth and forty-ninth.23 These six states are located in diverse geographic regions, from the east coast to the west coast and from New England to the south.24
The highest courts of these six states have varying degrees of influence. Two scholars recently measured state courts’ influence by tallying cases Shepard’s marked as “followed” by other states’ courts.25 Counting decisions that were followed at least three times between 1985 and 2005, the study’s authors ranked California first in influence, Illinois tenth, New York thirteenth, and Montana fifteenth.26 Less influential Vermont and Alabama ranked twenty-ninth and thirty-sixth respectively.27
My research assistants and I then located briefs from the six states through the following method. We searched the highest courts’ databases on Westlaw for cases decided in the year 2007, identifying cases with posted opening briefs for both sides. We did not include amicus briefs, nor did we include cases where either main brief was filed by a party acting pro se, because our purpose was to study lawyers’ practices. We examined the newest sets of briefs until we located fifty sets for each state. Through this method we found a total of 300 sets of briefs; most were from 2007 cases, but for New York and Alabama, this method required including some briefs from earlier cases. Some cases had briefs posted for more than two main parties, so the total number of briefs in the study is 626, which include a total of 1425 issue statements. Most of the briefs contain issue statements, but 48, or 3.3%, do not. Most of those—38—are appellees’ briefs, where presumably the drafter was satisfied with the appellant’s issue statement.
We then examined these briefs to see what kinds of issue statements lawyers are writing.
II. The study results
To analyze how lawyers frame issue statements, we looked at the following aspects of the issues section in each brief in the sample:
A. Succinctness, as shown by the number of separate issues and their length in words.
B. Clarity.
C. Sentence structure.
D. Opening words.
E. Manner of referring to the parties.
F. Inclusion of facts.
G. Framing for persuasiveness.
A. Succinctness
Succinctness was the first trait we examined. Judges prize this attribute. In one recent study, judges ranked concision as the most essential element of good writing.28 Another study showed that federal “[j]udges seem most interested in an advocate’s ability to be brief,”29 and in a third study, many state and federal judges in New York and New England thought “briefs are not brief enough.”30
Indeed, judges tend to form poor impressions of briefs written in wordy legalese.31 Judges and their research attorneys in one study read brief segments in either legalese or in plain English.32 They found the plain English briefs more convincing33 and thought the legalese briefs came from less prestigious firms and ineffective appellate advocates.34 As Judge Lynn Hughes observed, “For a hundred years, good lawyers have been writing without all the garbage and in a simple, direct style.”35
Findings of human cognition experts support these viewpoints by showing that long, complex sentences impede reader comprehension. Rudolf Flesch, who developed a widely used readability test,36 observed that readers’ minds need to take breaks to sum up what they are reading.37 For that reason, “the longer a sentence, the harder it is to read.”38 The Flesch-Kincaid readability test relies on sentence length and vocabulary complexity to measure readability.39 Shorter sentences contribute to a better readability score.40 Following similar principles, Joseph Kimble advises legal writers to use short and medium-length sentences that average around twenty words.41
Many commentators stress that issue statements should be succinct. Both Mary Beth Beazley and Carole Berry believe that a judge may simply stop reading a lengthy issue statement.42 Worse, the judge may turn to the opposing brief to clarify the issues.43 Even Bryan Garner, who recommends multi-sentence issue statements,44 would still restrict their length: “About 98% of the time, if you can’t phrase your issue in 75 words, you probably don’t know what the issue is. It’s that simple.”45
Some issue statements in this study violated that guideline. The following is one of the more verbose examples:
Whether the trial court abused its discretion in finding that there was no confidential communication or attorney-client privilege between Mrs. Lynch and Attorney Julie Wills regarding the deed transaction that is the [sic] and whether the court commited [sic] error by allowing Attorney Julie Wills to testify over objection of Mrs. Lynch about Mrs. Lynch’s instructions and expressed intent and about her competence at the time of the execution of the deed which the Plaintiffs Lynch seek to set aside on grounds of fraud, deceit, trickery and coercion (C 1, 2), when Ms. Wills was the attorney who prepared the deed that Plaintiffs Lynch seek to set aside and who also was the notary who completed the notary’s acknowledgment in that deed certifying that Juanita Lynch, who was known to her, acknowledged before her on August 30th, 2004 that being informed of the contents of the conveyance, she executed the same voluntarily on that date and when Defendant was present during the meetings between Mrs. Lynch and Attorney Wills where the discussions about Mrs. Lynch’s intentions were had and when instructions were given by her for preparation of the deed.46
This statement crams 190 words into a single sentence with no fewer than fifteen subordinate clauses and twenty-five prepositional phrases, four of them in a cumbersome string.47 Even its drafter got lost in the syntax, writing this nonsensical clause: “the deed transaction that is the and whether . . . .” A judge or research attorney is unlikely to make the effort to decipher a statement like this.
The average number of words for each discrete issue was 37. California and New York lawyers were the most verbose, averaging 45 words per issue, while Montana lawyers averaged only 26 words per issue, as shown in Table 1.
The highest number of words in one discrete issue—313—appeared in the appellant’s brief in Coleman v. Smith.48 Thirty-three other issues exceeded 100 words. The shortest coherent issue statement appeared in a Montana case: “Was counsel ineffective?”49 That question lacks facts, violating the recommendations of most judges and commentators, but those who discourage the inclusion of details50 might find it adequate.
The goal of succinctness can also be furthered by limiting the number of individual issues. Where a case includes multiple issues, the lawyer will need to include multiple questions presented.51 But judges and commentators almost all advise lawyers to limit their number, including only a few carefully chosen issues.52 Weak issues can dilute stronger ones.53 Moreover, a judge may become inpatient with too many issues. Judge Ruggero Aldisert explained how he reacts to the number of issues: “When faced with a brief that raises no more than three points, I breathe a sigh of satisfaction and conclude that the brief writer may have something to say.”54 But “[w]hen I read an appellant’s brief that contains more than six points, a presumption arises that there is no merit to any of them.”55 The average number of issues for all briefs in this study was 2.53. Table 2 shows the average number of issues per brief for each state:
Vermont briefs had the highest average number of issue statements, with 3.02 per brief, while the states with the lowest numbers, Montana and California, averaged 2.19 and 2.15 respectively.
The highest number of issue statements in a single brief was twelve, in the appellant’s brief in the Coleman case56 mentioned above. The case concerned whether a defendant had been properly served,57 and tellingly, the opposing lawyer managed to restrict his issues to two.58 Two other briefs contained eleven issues, and five briefs contained nine. Altogether, forty-three briefs, or 6.8%, transgressed Judge Aldisert’s guidelines by including six or more issues.
B. Clarity
A judge should not have to struggle to decode an issue statement, “and if asked to do so probably will not.”59 Especially in that important section of the brief, the writer must strive for transparent clarity. Data cannot precisely quantify clarity, but our study included examples of issues that lacked it, like this one:
Whether defendant should be granted a new trial because he waived the presence of a court reporter for voir dire, and, if not, defendant was denied due process, a fair trial or the effective assistance of counsel by the failure to record voir dire?60
By mixing several legal theories, this statement fails to focus on a single, clear question. The drafter should instead have narrowed the number of legal theories and written separate issues for each.
Another issue statement was unclear for a combination of reasons, including unclear terminology, confusing syntax, and lack of unity:
As to part B of chapter 383 of the Laws of 2001, did the court below err in holding that despite the New York State constitutional prohibition contained in the Bill of Rights, Article I, § 9, the Legislature, by reason of IGRA, could authorize the Governor to compact with Indians for a kind of Class III gaming on Tribal lands; and further whether despite Article I, § 9 the Legislature could make slot machines, held in the past to be contraband, lawful if permitted pursuant to an Tribal-State compact so that a Tribe could escape committing a federal offense aided by the State under 15 U.S.C. § 1175. 61
This issue contains terms that need explaining. The syntax is also confusing, violating parallel structure by beginning the first main clause with did and following the semi-colon with a whether clause. Moreover, the two clauses contain points that should appear as separate issues. It seems unlikely to persuade a judge, and in fact, the drafter’s clients lost.62
The statement would be clearer expressed as two manageable sentences:
1. Did the state of New York violate the gambling prohibitions in Article I, § 9 of the state constitution by entering a compact with Indians for gaming on tribal lands under the federal Indian Gaming Regulatory Act?
2. Did the New York legislature violate the gambling prohibitions in Article I, § 9 of the state constitution when, in order to insulate an Indian tribe from violating the federal prohibition on possessing gambling devices, it legalized the slot machines permitted under a Tribal-State compact?
This version contains shorter, parallel sentences, and reduces the overall length from 109 to 81 words. It clarifies some of the mysterious terms, resulting in an issue that a judge is more likely to read carefully.
* © Judith D. Fischer 2009. Assistant Professor of Law, University of Louisville Louis D. Brandeis School of Law. Thank you to Professors Nancy Levit and Ariana Levinson for their helpful comments on earlier drafts and Christine Hoeffner of the California bar for her suggestions. Thanks also go to Connie Eyle and Vanessa A. Smith, University of Louisville Brandeis School of Law class of 2010, for their invaluable research assistance.
1 Elizabeth Sprigge, Gertrude Stein, Her Life and Work 265 (Harper & Bro. 1957).
2 The court rules for the six states in this study use the following terms for the issue statement in a brief: Alabama: “Statement of the issues,” Ala. R. App. P. 28(a)(6); California: “Statement of the issues,” Cal. R. Ct. 8.520(b)(2)(B); Illinois: “Statement of the issue or issues presented for review,” Ill. Sup. Ct. R. 341(h)(3); Montana: “Statement of the issues presented for review,” Mont. R. App. P. 12(1)(b); New York: Statement of the “questions involved,” N.Y.C.P.L.R. 5528(a)(2); Vermont: “Statement of the issues presented for review,” Vt. R. App. P. 28(a)(1).
3 Nancy L. Schultz & Louis J. Sirico, Jr., Legal Writing and Other Lawyering Skills 310 (4th ed., LexisNexis 2004) (stating that the question presented “frames the questions you want the court to answer”); Robin Wellford Slocum, Legal Reasoning, Writing, and Persuasive Argument 488 (2d ed., LexisNexis 2006) (stating that the issue statement should “clearly inform the court of the question or questions it has been asked to resolve”).
4 Patricia M. Wald, 19 Tips from 19 Years on the Appellate Bench, 1 J. App. Prac. & Process 7, 12 (1999). See also Frederick Bernays Weiner, Effective Appellate Advocacy 59 (Christopher T. Lutz & William Pannill eds., rev. ed., ABA Publg. 2004) (stating that the question presented “is an extremely important item, particularly since by stating [it] well[,] you are really choosing the battleground on which your litigation will be contested”)
5 E.g. Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 83 (Thomson West 2008) (stating that the question presented “may well be the most important part of your brief”); David E. Sorkin, Make Issue Statements Work for You, 83 Ill. B.J. 39, 39 (Jan. 1995) (“The most important part of a written analysis of a legal problem is the introductory statement of the issues.”); Schultz & Sirico, supra n. 3, at 310 (“The Questions Presented section is one of the most important sections of the brief.”).
6 Carole C. Berry, Effective Appellate Advocacy: Brief Writing and Oral Argument 93 (3d ed., West 2003).
7 See Robert D. Benford & David A. Snow, Framing Processes and Social Movements: An Overview and Assessment, 26 Annual Rev. Sociology 611, 611 (2000) (explaining that framing theory has been applied in the fields of cognitive psychology, linguistics, communication, political science, and sociology).
8 Erving Goffman, Frame Analysis: An Essay on the Organization of Experience 21 (Harvard U. Press 1974).
9 Id.
10 James N. Druckman, On the Limits of Framing Effects: Who Can Frame?, 63 J. Pol. 1041, 1042 (2001).
11 George Lakoff, Don’t Think of an Elephant xv (Chelsea Green Publg. 2004) (“We . . . know frames through language.”)
12 Druckman, supra n. 10, at 1042.
13 See e.g. Lakoff, supra n. 11, at 4 (providing examples of language that has affected public opinion, including politicians’ use of “tax relief” to suggest that tax is an affliction); Thomas E. Nelson, Zoe M. Oxley & Rosalee A. Clawson, Toward a Psychology of Framing Effects, 19 Pol. Behavior 221, 224 (1997) (“Frames can be meaningful and important determinants of public opinion” that have affected opinions on subjects including welfare, affirmative action, and the causes of poverty.).
14 E.g. Richard K. Neumann & Sheila Simon, Legal Writing 250 (Aspen Publishers 2008); Deborah A. Schmedemann & Christina L. Kunz, Synthesis: Legal Reading, Reasoning, and Writing 218 (3d ed., Aspen Publishers 2007).
15 E.g. Gertrude Block, Effective Legal Writing for Law Students and Lawyers 193 (5th ed., Found. Press 1999).
16 E.g. Bradley G. Clary et al., Advocacy on Appeal 41 (3d ed., West 2008).
17 See John C. Dernbach et al., A Practical Guide to Legal Writing & Legal Method 242 (3d ed., Aspen Publishers 2007) (identifying one style of issue statement that omits specific facts, but recommending as more effective a second style that does include facts).
18 E.g. Veda R. Charrow et al., Clear and Effective Legal Writing 285 (4th ed., Aspen Publishers 2007).
19 E.g. Bryan A. Garner, The Elements of Legal Style 185 (2d ed., Oxford U. Press 2002); Gerald Lebovits, You Think You Have Issues? The Art of Framing Issues in Legal Writing—Part II, 78 N.Y. St. B.J. 64 (June 2006) (both promoting multi-sentence “deep issue” statements).
20 One recent study examined questions presented in the United States Supreme Court. Brady S. Coleman et al., Grammatical and Structural Choices in Issue Framing: A Quantitative Analysis of “Questions Presented” from a Half Century of Supreme Court Briefs, 29 Am. J. Tr. Advoc. 327 (2005).
21 Coleman et al. noted that a study of state court briefs might find different results from those their study found for the Supreme Court. Id. at 332.
22 U.S. Census Bureau, Census 2000, Table 1: States Ranked by Population, http:// www.census.gov/population/cen2000/phc-t2/tab01.pdf ) (Apr. 2, 2001).
23 Id.
24 Id.
25 Jake Dear & Edward W. Jessen, “Followed Rates” and Leading State Cases, 1940–2005, 41 U. Cal. Davis L. Rev. 683, 692 (2007).
26 Id. at 696.
27 Id.
28 Susan Hanley Kosse & David T. ButleRitchie, How Judges, Practitioners, and Legal Writing Teachers Assess the Writing Skills of New Law Graduates: A Comparative Study, 53 J. Leg. Educ. 80, 85 (2003).
29 Kristen K. Robbins, The Inside Scoop: What Federal Judges Think About the Way Lawyers Write, 8 Leg. Writing 257, 279 (2002).
30 David Lewis, Common Knowledge About Appellate Briefs: True or False?, 6 J. App. Prac. & Process 331, 335 (2004).
31 Robert W. Benson & Joan B. Kessler, Legalese v. Plain English: An Empirical Study of Persuasion and Credibility in Appellate Brief Writing, 20 Loy. L.A. L. Rev. 301, 313, 315 (1987).
32 Id. at 306.
33 Id. at 313.
34 Id.
35 Bryan A. Garner, Judges on Effective Writing: The Importance of Plain Language, 73 Mich. B.J. 326, 326 (1994).
36 For example, Microsoft Word allows users to measure the readability of their documents through a version of the Flesch-Kincaid readability test. Louis J. Sirico, Jr., Readability Studies: How Technocentrism Can Compromise Research and Legal Determinations, 26 Quinnipiac L. Rev. 147, 150 (2007).
37 Rudolf Flesch, How to Write Plain English: A Book for Lawyers and Consumers 21 (HarperCollins 1979).
38 Id. at 22.
39 Id. at 21–22.
40 Id. at 22–23. See also Sirico, supra n. 36, at 150–51 (describing the Flesch-Kincaid readability formula).
41 Joseph Kimble, Lifting the Fog of Legalese: Essays on Plain English 71 (Carolina Academic Press 2006).
42 Mary Beth Beazley, A Practical Guide to Appellate Advocacy 141 (2d ed., Aspen Publishers 2006) (“Questions that are too long are not read carefully—if they are read at all . . . .”); Berry, supra n. 6, at 93 (stating that a long issue statement may cause “the reader . . . [to] give up in mid-question.”).
43 Berry, supra n. 6, at 93 (stating that a lengthy issue may lead the reader to simply “turn to the opponent’s brief.”)
44 See infra nn. 90–92 and accompanying text.
45 Bryan A. Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts 80 (2d ed., Oxford U. Press 2004).
46 Br. of Appellee Rebecca Lynch Hamrick at 3, Lynch v. Hamrick, 968 So. 2d 11 (Ala. 2007).
47 See Mary Bernard Ray & Jill J. Ramsfield, Legal Writing: Getting it Right and Getting It Written 307 (4th ed., Thomson West 2005) (advising writers to avoid strings of prepositional phrases because they “can waltz your reader right off to sleep”).
48 Principal Br. of Appellant Berry D. Coleman at 4–6, Coleman v. Smith, 987 So. 2d 1126 (Ala. 2007).
49 Br. of Appellant at 1, State v. Gilbert, 175 P.3d 306 (table), 2007 WL 4395983 (Mont. 2007).
50 See Ill. Civ. App. R. 341(h)(3); N.Y.C.P.L.R. 5528(a)(2); Dernbach, supra n. 17, at 242 (noting that some drafters omit facts from their issue statements, but advising that it is more effective to include facts).
51 Linda H. Edwards, Legal Writing: Process, Analysis, and Organization 320 (4th ed., Aspen Publishers 2006); Teresa J. Reid Rambo & Leanne J. Pflaum, Legal Writing by Design: A Guide to Great Briefs and Memos 394 (Carolina Academic Press 2001); Helene S. Shapo et al., Writing and Analysis in the Law 403 (5th ed., Found. Press 2008).
52 Clary, supra n. 16, at 35.
53 Ruggero J. Aldisert, Winning on Appeal: Better Briefs and Oral Argument 127(2d. ed., NITA 2003). See also Ursula Bentele & Eve Cary, Appellate Advocacy: Principles and Practice 466 (LexisNexis 2004) (stating that a lawyer can harm a client’s cause “by diluting the strong points in a brief with a collection of weak ones”).
54 Aldisert, supra n. 53, at 129.
55 Id.
56 Principal Br. of Appellant Berry D. Coleman at 4–10, Coleman, 987 So. 2d 1126.
57 Coleman, 987 So. 2d at 1127.
58 Br. of Def.-Appellee's Opposition to Pl.'s App. at 4, Coleman, 987 So. 2d 1126.
59 Bentele & Cary, supra n. 53, at 472.
60 Br. & Argument for Pl.-Appellee at 4, People v. Houston, 874 N.E.2d 23 (Ill. 2007).
61 Br. of Appellant-Respt. Mrs. Lee Karr at 8, Dalton v. Pataki, 835 N.E.2d 1180 (N.Y. 2005).
62 Dalton, 835 N.E.2d at 1198–99.
63 See Berry, supra n. 6, at 93–94; Edwards, supra n. 51, at 318; Neumann & Simon, supra n. 14, at 250–51 (each identifying two traditional formats for questions presented: 1) a clause beginning with whether and ending with a period and 2) a sentence beginning with a verb and ending with a question mark).
64 See Beazley, supra n. 42, at 136 n .2 (explaining that a question beginning with whether is a sentence fragment, with the words “The issue is” omitted); Berry, supra n. 6, at 93–94 (stating that beginning with whether results in an ungrammatical sentence, but noting that whether questions are accepted or even preferred in some places); Garner, supra n. 45, at 75 (noting that a whether question is not a true sentence).
65 See infra nn. 67, 71, 115 and accompanying text.
66 Ex parte Jallad, 988 So. 2d 946 (Ala. 2007).