By Chinua Asuzu
Do you begin your issue statements with the word “whether”?
STOP IT.
Why?
Let me tell you a story.
It’s past 3 pm. You’ve just got home from a long, hard day in court. The judge was a Hippy Hallet if ever there was one—she asked more questions than both counsel combined.
The opposing counsel was fiendish, knavish, skittish, and wolfish. The witnesses were brazenly mendacious and cheaply theatrical. The courtroom was dusty, hot, and musty. Your temperamental car broke down twice on the way from court—thank God that didn’t happen on the way to court.
You’re exhausted, famished, and sweaty. All you need is a cool shower and a late, much-deserved lunch before returning to chambers. You park your car and lumber out.
Alabi Bello, your next-door neighbor and friend, a nonlawyer with an ear to the ground, saunters over to say good-day. Observing your melancholy, he asks with characteristic empathy, “What’s that case all about?”
You can’t tell Alabi that the case is about “whether the petitioner has proved his case.” Nor can you tell Alabi that the case is about “whether the claimant is entitled to damages in the circumstances of this case.”
You’re more likely to say to Alabi, “Well, you see, Alabi, our law requires a landlord to issue a quit notice before evicting a tenant. In this case, the landlord never issued any quit notice. Instead, he forcibly ejected the tenant. So the question now is, Was the landlord right to throw out the tenant?”
Alabi might then say, “Oh, I see. That’s an easy one, isn’t it? The landlord can’t be right, can he?”
That’s how to frame an issue. I call it the lay-friend test of issue-framing. The deep-issue format passes this lay-friend test, as you will see below.
If you can’t explain the issues in a case to an intelligent layperson, you don’t understand the case.
If you must “[take] refuge in the excuse that the language of craftsmen is unintelligible to those untutored in the craft,” you don’t understand the case. Benjamin N. Cardozo, The Nature of the Judicial Process (Yale University Press, 1921), 1.
You’re only covering “with a semblance of respectability” your “ignominious retreat” from the inquiring laity. Cardozo.
We should encourage and welcome curious, informed, inquisitive, and intelligent laypersons. They help to improve the profession. They help to make us more client-sensitive, more constituency-conscious, and less arrogant.
You should draft your issue in language intelligible to the intelligent laity and suggestive of an irresistible answer. The mark of a true professional is the ability to convey complex matters in simple, comprehensible language.
“Great legal writers turn complicated legal issues into something simple and understandable. They bring their audience to a logical conclusion, one that suits their clients.” Gerald Lebovits, ‘How to Succeed in Legal Writing by Really Trying,’ 90 NYSBA Journal (No. 7, Sept 2018), 61.
The deep-issue format begins with a threshold statement of doctrine, law, policy, principle, procedure, or regime. This statement serves as a background for the pertinent facts to follow. The deep-issue format then ends with a short question whose answer is discoverable, usually with ease, from the preceding premises.
The deep-issue format is the ablest, clearest, finest, safest, and surest method of articulating issues.
The deep-issue method is the only invariably multi-sentence format. All the other methods are typically one-sentence formulations, the Saleh v Abah anomaly notwithstanding. (In Saleh v Abah [2017] 12 NWLR (Part 1578) 100 (SC), 129C–D (Bage JSC), the appellant used multiple sentences for each whether-fragment issue.)
Bryan A. Garner believes that one-sentence issue formulations tend to degenerate. Bryan A. Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts, 3rd ed. (OUP, 2014), 97.
He counsels legal writers to abandon all single-sentence issues and keep their “premises and the question in separate sentences.”
The plain-English canon against overlong sentences applies to issues for determination, thus favoring the multi-sentence structure of the deep issue over the single-sentence format of all the other issue-framing methods because in those other methods the sentence typically becomes too long in any bid to escape abstraction.
The deep-issue paradigm is a statement-statement-question or premise-premise-conclusion formula. It’s a three-part syllogism.
The first part is usually a one-sentence proposition of law.
The second part is a narration of facts or circumstances and may take from one to three sentences.
The third part is a short question set to elicit the conclusion you desire.
The first part of a deep issue states the major premise or the rule of law, the second states the minor premise or the facts to which the law will be applied, and the third poses the conclusion as a question. David J. Perlman, ‘The Legal Brief: The New Paradigm,’ The Philadelphia Lawyer (Fall 2011), 10.
Typically, a deep issue will consume 3–5 sentences, but no matter the number of sentences, a deep issue must stay under the 75-word limit. The middle sentence or sentences, the minor premise of the syllogism, should consist of the legally significant facts. Because you need to make your facts as concrete as possible and arrange them chronologically, you may need two or three sentences for this premise. “And sustain the storyline as long as you can before asking a short, punchy question” in the last sentence (the conclusion). Garner, Winning Brief, 123.
The conclusion implied in the short question should be irresistible. “As an advocate, you want to find the premise that will pull the court toward your conclusion and then make that premise explicit in your statement of the issue. If the court decides to answer the question you pose, it will probably reach the conclusion you urge.” Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges (Thomson/West, 2008), 84. The best-phrased issue is probably one whose major premise is “a legal proposition that the court will immediately accept as settled law. … For the court to accept a conclusion that you proffer, it first has to agree absolutely with your major premise.” Ruggero J. Aldisert, Winning on Appeal: Better Briefs and Oral Argument, 2nd ed. (NITA, 2003), 153.
When the facts allow, supply an irresistible, uncontroversial major premise—you’re saying to the court: this is what our law says; let’s start with it. Ideally, it should be a proposition the opposition could not seriously controvert.
The major premise is the thematic foundation of the deep issue. It must be true. If it’s untrue, the entire edifice collapses. Nothing can save the syllogism. “If the major premise is not true, your entire argument fails. All is lost. All the facts you set forth, all the citations that follow, will not help you.” Aldisert, Winning on Appeal, 223.
A syllogism whose major premise isn’t completely acceptable is not worth very much. If the major premise is sound, and the minor premise is true, then the conclusion (albeit couched as a question) must follow. That’s how you should draft your issue.
Human reasoning and legal logic are “always stretched on this frame: If this is true, and that is true, then such and such must follow.” Percy Marks, ‘Logic’ (1945), in William G. Leary & James Steel Smith, eds., Think Before You Write: Textbook Anthology for College English (Harcourt Brace & Co, 1951), 238.
In framing issues, avoid complex questions. Phrase your question to admit of only one possible answer and to elicit a yes-or-no answer. An effective way to elicit a yes-or-no answer “on a complicated issue is to make an introductory statement [that] sets the stage for the question itself.” Garner, Winning Brief, 94 (quoting Stanley L. Payne, The Art of Asking Questions [Princeton University Press, 1954], 71).
That introductory statement is comprised in the major and minor premises of your syllogistic deep issue. As far as possible, shape your question “to compel a desirable response, or at the very least avoid an undesirable one.” Garner, Winning Brief, 112 (quoting William A. Rusher, How to Win Arguments [University Press of America, 1981], 118).
The information you provide in the major and minor premises must suffice to enable the judge to say, literally, yes or no.
Or, imagine it’s a law-school problem question with the instruction “Answer yes or no.” Then provide enough law and facts in your major and minor premises to enable the candidate answer as instructed.
To illustrate, a deep issue may look like this:
“To maintain a passing-off action, a claimant must show that the defendant’s goods so resemble the claimant’s as to be likely to deceive. The evidence here is that though the resemblance is close, nobody is deceived. Is the defendant liable in passing off?”
A deep issue can be longer than three sentences. The following 4-sentence example is from Garner himself:
“The California Political Reform Act prohibits a public officer from participating in a decision in which he or she has a material financial interest. Georgette Frye, the mayor of Monrovia, California, owns two office buildings in downtown Monrovia. The City Council is now considering a resolution to provide a new sewer system for the downtown area. Is Mayor Frye prohibited from voting on the resolution?”
The deep-issue format follows human problem-solving behavior and is thus deeply appealing. When we approach a friend with a difficulty we’re confronting or a challenge we’re facing, we first tell the story and then follow it with a question or a request for a solution or a suggestion, or a plea for empathy or sympathy. The deep issue gives the background of a problem and then asks a question or requests a solution. It’s thus harmonious with human psychology.
The deep-issue format also follows classical logic. You state the controlling law first—that’s the major premise. It provides context for the forthcoming minor premise. Then you recount the legally significant facts—that’s the minor premise. Make the factual account as specific as possible—you can use more than one sentence yet stay within the 75-word limit for the whole issue.
Tell a mini story with your issue statement. “Use concrete facts, not abstract or conclusory ones, to tell as much of the story as possible. Include only those facts that illuminate the problem.” Garner, Winning Brief, 127.
Use several sentences, if necessary, to clarify your minor premise. End with the conclusion phrased as a short, punchy question, preferably without any new content.
The deep issue “generally mirrors a syllogism—the basis of all logical thought. You have a major premise stating the law, a minor premise presenting the facts that directly tie into that major premise, and a conclusion. But when cast as part of an issue statement, the conclusion becomes a question.” Garner, Winning Brief, 112.
A question looks and sounds objective and is thus fit for judicial consideration. This is so even when the question is gently slanted in your favor. A statement would push your answer too aggressively. Aggressively pushing your answer is inappropriate for issue presentation and could irritate or even antagonize the ben bench.
With the deep-issue syllogism, you also challenge your opponent to explain how the answer could possibly differ from the one you suggest.
Behold the classical syllogism:
All humans are mortal [major premise].
Socrates is human [minor premise].
Therefore, Socrates is mortal [conclusion].
Adapting this syllogism to issue formulation, the last statement turns into a question with an obvious answer: Is Socrates mortal?
“The major premise is the controlling legal point. The minor premise is the factual point that ties into that legal point. And the conclusion is expressed as a question.” Garner, Winning Brief, 113.
The major premise and the conclusion should guide your editing of the minor premise after your first draft. That’s why Socrates’ baldness, sexual orientation, nationality, age, and looks are irrelevant to this classical syllogism. Who cares whether Socrates was bald, gay, Greek, old, or ugly? Edit out those legally insignificant facts when reviewing your draft.
