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.