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Writing Issue Statements (Part 1)

C. Vodzak Legal Writing 0

While perusing some appellate court opinions yesterday, I realized that the development of good issue statements (also known as questions presented) continues to be a worthwhile topic to discuss.  This post will demonstrate some very basic ways to make issue statements clear and readable.

This is an appellant’s issue statement as it was quoted in one court opinion*:

WHETHER THE TRIAL COURT COMMITTED ERROR OF LAW WHEN IT HELD THAT A CONFLICT OF INTEREST DID NOT EXIST FOR ANY ATTORNEY SELECTED AND PAID FOR BY WASHINGTON INSURANCE TO DEFEND JANE JEFFERSON IN THE CASE OF Sink Repair Services Inc. d/b/a A.A. Adams & sons et al. (“MADISON LITIGATION”), LINCOLN COUNTY, PENNSYLVANIA COURT OF COMMON PLEAS NO. 00-00000, BASED UPON THE FACTS THAT JANE JEFFERSON HAS BEEN SUED FOR INTENTIONAL CONDUCT AND PUNITIVE DAMAGES, NEITHER OF WHICH ARE [sic] COVERED BY THE INSURANCE POLICY UNDER WHICH WASHINGTON INSURANCE IS DEFENDING JANE JEFFERSON THE [sic] MADISON LITIGATION, AND BECAUSE ANY ATTORNEY SELECTED BY WASHINGTON INSURANCE HAS INHERENT AND CONCURRENT RESPONSIBILITIES TO WASHINGTON AS A THIRD PARTY PAYOR AND TO JANE JEFFERSON AS A CLIENT?

Wow.  Now isn’t that just the kind of issue statement that would make Bryan A. Garner want to pull his hair out?

I’m not a new lawyer, and I’m no dummy, but I couldn’t understand what the appellant was saying, certainly not after one reading.  Unfortunately, this way of writing issue statements is not unusual.

Here is the result of my first attempt at making the issue statement more understandable:

Whether the trial court committed an error of law when it held that a conflict of interest did not exist for any attorney selected and paid for by an insurance company to defend a client sued for intentional conduct and punitive damages, neither of which is covered by the insurance company and because any attorney selected by an insurance company has inherent and concurrent responsibilities to an insurance company as a third party payor and to the client?

Not great, but I made it a bit better by taking the following steps:

  • Eliminate the ALL CAPS formatting
  • Remove bold
  • Correct grammatical errors
  • Eliminate unnecessary words, particularly facts that are immaterial to the resolution
  • Replace proper names when possible

Do not make judges (or their law clerks) work to understand what you are trying to say when you can and should be using the issue statement as an opportunity to lead the court to the conclusion that you desire.  My improvement on the appellant’s issue statement is far from complete, but it is a start.

In Part Two, I will focus on the more substantive aspects of crafting a good issue statement.  If, like me, you are a fan of Mr. Garner’s or had the chance to read his ideas on this subject, you know what I’ll be talking about in the next post.

*The proper names have been changed.

How to Write a Statement of the Standard of Review in Five Simple Steps

C. Vodzak Legal Writing, Standards of Review 2

In an earlier post entitled Scope v. Standard (of Review) in a Nutshell, I mentioned the difficulty many lawyers have with these critical elements of appellate practice.  This is a short guide for writing a statement of the standard of review in as few as five steps.

1.  First Sentence

Because a statement of the standard of review often appears early in an appellate brief, put the issue in context first.

The district court interpreted 28 U.S.C. § 1961 to mean that post-judgment interest on prejudgment interest does not begin to run until the district court issues an order quantifying the amount of prejudgment interest due.

2.  Second Sentence

In the second sentence, identify the type of underlying issue resolved by the lower court and the applicable standard of review in a simple, concise statement.

Statutory interpretation presents a question of law over which this Court exercises de novo review.

3.  Citation

Provide a citation to mandatory authority.  Generally, one citation is sufficient for a well-established standard of review.  If no mandatory decision addressing the precise issue exists, then consider including a second citation from outside the jurisdiction.  This is not required, but it can be helpful and demonstrate your understanding of the standard of review.

Pell v. E.I. DuPont de Nemours & Co., 539 F.3d 292, 305 (3d Cir. 2008). 

See also American Telephone and Telegraph Company v. United Computer Systems, 98 F.3d 1206, 1209 (9th Cir. 1996) (treating the interpretation of 28 U.S.C. § 1961 as a pure issue of law subject to de novo review on appeal).

4.  Last Sentence

In the last sentence, define the standard of review.

Under a de novo standard of review, this Court owes no deference to the district court’s statutory interpretation analysis.

5.  Citation

Again, cite to a mandatory decision supporting your proposition.

See Pell, 539 F.3d at 305.

Final Result:

The district court interpreted 28 U.S.C. § 1961 to mean that post-judgment interest on prejudgment interest does not begin to run until the district court issues an order quantifying the amount of prejudgment interest due.  Statutory interpretation presents a question of law over which this Court exercises de novo review. Pell v. E.I. DuPont de Nemours & Co., 539 F.3d 292, 305 (3d Cir. 2008). See also American Telephone and Telegraph Company v. United Computer Systems, 98 F.3d 1206, 1209 (9th Cir. 1996) (treating the interpretation of 28 U.S.C. § 1961 as a pure issue of law subject to de novo review on appeal). Under a de novo standard of review, this Court owes no deference to the district court’s statutory interpretation analysis. See Pell, 539 F.3d at 305.

Adding boilerplate language or copying and pasting from other appellate briefs does nothing to aid the court and can damage your credibility.  The best practice is researching and specifically tailoring the statement of the standard of review to your case.

*Information in this post was based on a 2009 Continuing Legal Education presentation by Julia Glencer at Duquesne University School of Law.

U.S. v. Warren: A Valid Miranda Warning?

C. Vodzak Criminal (3d Cir.), Third Circuit Case Summaries 0

U.S. v. Warren, No. 10-1598 (3d Cir. April 21, 2011)

Warren was indicted for intent to distribute crack cocaine and possession of a firearm by a person previously convicted of a felony.  At a suppression hearing, the police officer recounted the unread warning that he gave to Warren in the police station:

I told [Warren] that he had the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford to hire an attorney, one will be appointed to represent you without charge before any questioning if you wish. Should you decide to talk to me, you can stop the questioning any time.

The district court for the Western District of Pennsylvania refused to suppress Warren’s statements. Warren appealed this decision to the Third Circuit.

Affirming the district court’s decision, the Third Circuit held that a warning lacking both an explicit reference to a right to counsel after the commencement of questioning and a “catch all” is sufficient if it reasonably conveys the substance of the rights expressed in Miranda.

While acknowledging that the warning in this case was not the clearest possible and noting that it was given at a police station where a written warning should be readily available, the Third Circuit did conclude that, taken as a whole, the warning did reasonably convey Warren’s Miranda rights.

Analyzing Miranda and its progeny, the Third Circuit found that the officer’s statement about appointed counsel merely indicated when that right was triggered, and a reasonable person could not interpret it as restricting what the Court believed was the previous, unqualified declaration of Warren’s general right to counsel.

*I highly recommend reading Judge Greenaway’s dissent, also.

Scheafnocker v. Commissioner of Internal Revenue Service: Due Process Claim for Procedural Remedy Permitted When IRS Failed to Notify of Levy

C. Vodzak Third Circuit Case Summaries 0

Scheafnocker v. Commissioner of Internal Revenue Service, No. 08-2655 (3d Cir. April 19, 2011)

To collect back taxes owed by Scheafnocker’s ex-husband, the IRS levied on their joint bank account in western Pennsylvania.  The IRS never notified Scheafnocker, a California resident, of the levy.

In the Eastern District of California, Scheafnocker filed a complaint containing a wrongful levy claim and a due process claim seeking monetary damages, or in the alternative, a procedural remedy.  The case was ultimately transferred to the Western District of Pennsylvania.

The district court granted the IRS’s motion to dismiss for lack of subject matter jurisdiction holding that Scheafnocker’s wrongful levy claim was time-barred.  Scheafnocker appealed this decision to the Third Circuit.

In vacating the district court’s order and remanding the case, the Third Circuit held that the due process claim against the IRS for money damages is barred by sovereign immunity, but the due process claim for a strictly procedural remedy is permitted.  

Analyzing the Administrative Procedures Act, the federal question statute and their amendments, the Third Circuit concluded that Congress expressly waived sovereign immunity in non-monetary claims against a federal government agency. 

The Use of Hardball Tactics in Legal Writing

C. Vodzak Legal Writing 0

Incivility toward lower courts and opposing counsel is nothing new, but personal attacks in appellate briefs have been on the rise despite pleas from courts and legal writing experts for lawyers to use such hardball tactics at their (and their clients’) own risk.

Recently, the Volokh Conspiracy posted a portion of the Big Dipper Entertainment v. City of Warren opinion in which the Sixth Circuit Court of Appeals confronts this issue:

[The appellant] criticizes [the district court’s] finding in notably harsh terms, asserting that the district court “made no pretense” of applying the proper summary-judgment standard, that the court’s analysis of the issue (in a 32-page opinion) was “cursory,” that the court “chose to disregard” the “voluminous and detailed analysis” set forth in the report of [the appellant’s] expert, Bruce McLaughlin, and so on. ([Appellant] similarly accuses opposing counsel of making “egregious misstatement[s]” to this court, etc.)

Arguments like these—which casually impugn the motives of the district court or, more commonly, opposing counsel—are regrettably common of late. So we think it worthwhile to comment on them. In our view, a party should think twice about questioning the district court’s integrity or that of opposing counsel. That two persons disagree does not mean that one of them has bad motives. And even in the worst cases, the better practice is usually to lay out the facts and let the court reach its own conclusions.

This type of legal writing seriously detracts from any meritorious arguments, angers judges and subjects the lawyer to potential public humiliation.

Is this trend continuing because of inadequate supervision of brief-writing subordinates? Or, because some passionate trial lawyers are handling appeals?  Here is a link to another example that received a lot of attention: a recent order from a Kansas trial court.

Regardless of the possible causes, lawyers should not underestimate courts.  They should consider having an appellate lawyer write appellate briefs.  And in all cases, they should proofread explicitly for personal attacks on courts and opposing counsel.

I think the best practice is for lawyers to write persuasively so that a court can reach the desired conclusion through deductive reasoning.  This method of legal writing takes skill and experience, so I agree with the Sixth Circuit: At the very least, simply lay out the facts rather than risk your case with poor legal writing.