EVERGREEN SUPREME COURT
APPELLATE ADVOCACY PROJECT
WRITING THE APPELLATE BRIEF:
Context for Developing the "Questions Presented"
Since we are not studying the law in great depth and you will not have the opportunity or the expertise to do extensive legal research, yu will not be expected you to present highly polished legal arguments of the type you would see in law school or in the courts. However, you are expected to develop solid arguments on your side of the case.
By reading your case carefully, you can learn a substantial amount about the law that applies to your case. In addition, you should feel free to argue policy (the prudence or wisdom of pursuing a particular course of action).
For about three weeks, we will focus on developing your argument. The quick overview above, however, is important to understanding why and how you develop "Questions Presented."
Guidelines for Developing the "Questions Presented"
In this section of the appellate brief, you state the legal issues or questions presented by the facts of the case. This is your opportunity to identify the issues that you want the court to consider and decide.
This is a time for advocacy, not neutrality. It is a significant opportunity to frame the issues in a way that is beneficial to your side of the case. The importance of the way the issues are set forth in the appellate brief is underscored by the fact that this is likely to be the first section of the brief that the judges will read. A well-written set of questions presented will focus the judges’ attention on your view of the case and could influence the perspective of the judges in reading and assessing your brief.
As you try to identify the main legal issues, i.e. the questions presented, it may be helpful to ask yourself: Why do I want the appellate court to hear this case? What are the important legal questions which, in my view, the court needs to consider? What is the question or issue for which there apparently is no one indisputable answer? Why is there a dispute about the way a rule of law has been applied to the facts of my case?" In sum, you are seeking to articulate whether or in what way a rule of law applies to a particular set of facts or circumstances.
Most cases arise from disputes about some enacted law. Your questions, therefore, should incorporate two things--the rule of law at issue and the specific and key circumstances to which the rule of law has been applied.
Most cases have many legal issues, some major and some minor. Concentrate on the major issues that will be decisive in the outcome of your case. Avoid weak or marginal issues. Things to remember as you draft the statement of the questions presented:
1. You must draft the Questions Presented in such a manner that they can be answered as either "yes" or "no." If your question does not lend itself to such an answer, restate it. Questions that begin with Who, What, Where, When, Why or How are all inappropriate. The question must begin with a "helping" verb: "Is...Will...Should...Does...Do...?" Alternatively, Questions Presented can begin with "Whether" where the words "The issue is" are understood: "(The issue is) Whether... ."
2. Every word counts. Avoid details that are unnecessary to stating the legal issues, but include those details that are important to understanding the legal issues.
3. Do not ignore unfavorable circumstances or facts that are important to understanding and stating the issue, no matter how damaging they may be. On the other hand, do not display damaging circumstances in "neon lights." There are legitimate ways to avoid giving such emphasis to unfavorable circumstances. For one thing, you can make brief reference to them. You can also refer to them in broad, general terms.
4. Do not fail to give favorable facts or circumstances high "billing". Describe them in specific, detailed terms if appropriate. Use words that are favorable to your client and unfavorable to your adversary’s case.
5. The placement of each word in the question counts. Place words and refer to circumstances which are favorable to your client (or damaging to your adversary) as near as possible to the beginning of the questions and place words and refer to circumstances which are unfavorable to your client as far to the end of the questions as possible.
6. Do not distort the questions and certainly do not present them falsely or in a misleading way. Do present the questions in a way that is reasonably favorable to your client.
7. Your statement of each of the questions presented must be accurate and complete. There are usually many different ways to phrase a legal question. Try different formulations of the same question and decide which one is most favorable vis-à-vis your client and least favorable to your adversary.
8. Be prepared to revise your questions as you write your argument and after you are finished writing it. You may even find that you have missed the boat and need to throw away a question you have written or add a question you previously overlooked.
Examples of Questions Presented
Below are some Questions Presented in Supreme Court appellate briefs for Capitol Square Review & Advisory Board v. Pinette, 515 U.S. 753 (1995). In that case, the Ku Klux Klan sued when the Capitol Square Review & Advisory Board refused it permission to erect a freestanding cross in a public plaza next to the state capitol, where other groups had been allowed to erect displays. The KKK was denied a permit because of the religious nature of its proposed display. Some of the following are actual Questions Presented taken from petitioner, respondent and amicus curiae briefs in that case, and some are slightly modified versions of Questions Presented in those appellate briefs. How does each Question Presented satsify the guidelines offered above? Can you tell which Questions Presented were written by the petitioners (Capitol Square), which denied the permit, and which were written by the respondents (KKK), who sought to erect the cross? How? How does your answer suggest that each Question Presented is framed in a way that is beneficial to the side presenting it? Does this help you to see how advocacy begins with the Questions Presented, well before you write the actual argument?
2) Whether the temporary, unattended display of a Ku Klux Klan cross on a public forum open to all other political and religious expression violates the Establishment Clause because the public forum is in proximity to the seat of government.
3) Whether the state may use the Establishment Clause as an excuse to censor private persons' and organizations' religious speech in a public forum, despite the Free Speech Clause's general prohibition of content-based restrictions on speech in public fora.
4) Whether selective exclusion of religious speech from a traditional public forum violates the Establishment Clause.
5) Whether, on balance,
the Establishment Clause forbids the display of solitary, unattended religious
symbols--even privately sponsored ones--in public forums that abut core
© 2003 by José Gómez