9.1.2 QUESTIONS PRESENTED

Some motion briefs—and many appellate briefs—use questions presented to articulate the issues before the court. Supreme Court Rule 14.1(a), which governs the questions as they appear in the petition for the writ of certiorari and which is referred to in Rule 24.1(a), requires that each question be “expressed concisely in relation to the circumstances of the case, without unnecessary detail.” The rule further requires that the question be “short” and that it “should not be argumentative or repetitive.” For briefs on the merits, Supreme Court Rule 24.1(a) requires that the brief contain “the questions presented for review under Rule 14.1(a).” Although this language appears to require that the attorney repeat the exact language of the question(s), the rule later states explicitly that the attorney may rewrite the language:

The phrasing of the questions presented need not be identical with that in the petition for a writ of certiorari or the jurisdictional statement, but the brief may not raise additional questions or change the substance of the questions already presented in those documents.

Supreme Court Rule 24.1(a). Supreme Court Rule 14.1(a) specifically provides that “[t]he statement of any question presented is deemed to comprise every subsidiary question fairly included therein.” Thus, the question presented written to the Court is generally a broad question that addresses the ultimate issues that the Court must consider in order to decide how to dispose of the case. Counsel for either party may decide to rephrase the questions to give the Court what it considers to be a more accurate snapshot of the issue. All questions presented, whether written for a motion brief or an appellate brief, should include certain elements, should be appropriately persuasive, and should avoid certain problems.

a. Elements to Include

Generally, writers should include three elements when writing a question presented: the question itself, expressed as a yes-or-no question; the relevant law; and the legally significant facts.

Under the Fourth Amendment’s privacy guarantees, does an invitee into a residence have a legitimate expectation of privacy when the invitee’s sole purpose for being present is to assist the resident in the illegal activity of bagging cocaine? Whether an invitee into a residence has a legitimate expectation of privacy under the Fourth Amendment when the invitee’s sole purpose for being present in the residence is to assist the resident in the illegal activity of bagging cocaine?

The Fourth Amendment requires a search warrant before police may invade a person’s legitimate expectation of privacy. Police, without a warrant, observed Respondents as they helped a friend assemble bags of cocaine in the friend’s basement apartment. The question presented is as follows:

Do invitees to a residence have a legitimate expectation of privacy in that residence when they are present solely to assist the resident in the illegal activity of bagging cocaine?

Some writers use the question presented to ask a question about a substantive legal issue, essentially asking, “Under relevant law, does a certain legal status exist when these legally significant facts are present?” as in this example:

Under the Fourth Amendment, can a state promote the interest of officer safety by enacting a statute that gives police officers authorization to conduct a search of a motor vehicle when they issue a citation to a person who has committed an offense that allows arrest?

Some appellate brief writers put the legal issue in the context of the decision that the court is being asked to reverse, essentially asking, “Whether the court below was correct when it held that under the relevant law, a certain legal status existed when these legally significant facts were present?” as in this example:

Whether the Iowa Supreme Court correctly held that states can, consistent with the Fourth Amendment, promote the interest of officer safety by enacting a statute that gives police officers authorization to conduct a search of a motor vehicle when they issue a citation to a person who has committed an offense that allows arrest?

Writers of motion briefs do not have to address a decision below, but they may face other concerns.

The following example shows two questions from a motion brief addressing issues related to Ohio’s public policy exception to the employment-at-will doctrine. The doctrine allows a plaintiff to recover damages for a wrongful discharge if he or she can establish four elements. One of the elements is a question of law that requires the plaintiff to establish that a particular public policy will be “jeopardized” by the plaintiff’s termination. Another element is a question of fact that requires the plaintiff to prove that the discharge was “caused” by public policy related behavior. Note how the questions differ in focus; in particular, note how the second question includes language relevant to the pleading standard:

GOOD EXAMPLES

Under Ohio’s public policy exception to the employment-at-will doctrine, which provides that a public policy is “jeopardized” only when relevant statutes do not provide adequate remedies to protect society’s interest in the policy, can a plaintiff establish jeopardy when the relevant statutes provide for a series of penalties, beginning with a warning letter and moving on to fines in the thousands of dollars?

Under Ohio’s public policy exception to the employment-at-will doctrine, which provides that causation can be established when an employee is terminated soon after protected behavior by a person who had knowledge of the protected behavior, has a plaintiff pled facts sufficient to raise his right to relief above the speculative level when he alleges that he complained about illegal cigarette smoking to one supervisor and that he was fired by another supervisor five months later?

In addition to deciding how to focus your question, you must also decide how to structure the question.

Whether the court below erred when it held that this law applied in this way to the legally significant facts? or Whether legal status exists when these legally significant facts exist and when this law applies?

The “under-does-when” format, on the other hand, puts less emphasis on the core question, putting the law at the beginning. It also allows the writer to shift the legally significant facts to the end of the question, which may help to emphasize positive facts, as in this example:

Under the Fourth Amendment’s privacy guarantees, does an invitee into a residence have a legitimate expectation of privacy when the invitee’s sole purpose for being present is to assist the resident in an illegal activity?

The multi-sentence method, perhaps obviously, puts the core question at the end, which is also a position of emphasis. When deciding which format to use, consider what information you would like in the positions of emphasis within the question. Generally, the beginning and the end of the question are positions of emphasis, with the end of the question being the strongest position.

b. Persuasive Questions Presented

When choosing the format and the type of question that you ask, consider which drafting method will allow you to emphasize your point of view. The practical brief writer does more than merely write a question that includes all three of the needed elements. Karl Llewellyn notes the importance of “controlling” the legal issues in a case:

Of course, the first thing that comes up is the issue and the first art is the framing of the issue so that if your framing is accepted the case comes out your way. Got that? Second, you have to capture the issue, because your opponent will be framing an issue very differently.... And third, you have to build a technique of phrasing your issue which will not only capture the Court but which will stick your capture into the Court’s head so that it can’t forget it.⁴

Conventional wisdom has it that the advocate should draft a question so that a “yes” answer is favorable to his or her case.

Under the Fourth Amendment, was the Minnesota Supreme Court correct when it found that Respondents, as social guests, had a reasonable expectation of privacy in the home they were visiting? Whether the Fourth Amendment gives invitees into a residence a legitimate expectation of privacy while in the residence when their sole purpose for being present is to assist the resident in an illegal activity?

Note that the writer of the first wants the reader to answer “yes,” to agree with the assertion that social guests have a reasonable expectation of privacy in the home in which they are visiting. The second is also an effective question, but the drafter of that question has essentially asked the question “do invitees have a legitimate expectation of privacy when they are doing something illegal?” and hopes that the reader will answer “of course not!” By asking the question in this way, the drafter tries to show that the opponent’s argument is based on a ridiculous premise. The drafter hopes that the court’s dramatic, negative reaction to the question will convince it that the other side is asking for a ridiculous result.

The writers of both of these questions are trying to influence the Court’s image of the case by including what Judge Ruggero Aldisert calls “enthymemes”: unspoken premises that support their arguments.⁵

Although the best enthymemes are based on legal premises that any court would agree with, some effective enthymemes can be based on policy premises or even commonsense premises.

In the first example shown previously, the writer is basing his or her arguments on at least three unstated premises: (1) that the Supreme Court should give some deference to the Minnesota Supreme Court, (2) that “homes” are private places, and (3) that “social guests” have expectations of privacy.

The second example, written from the government’s point of view, is based on some opposite premises: (1) that “invitees” have less of an expectation of privacy than “social guests,” (2) that “residences” are less private than “homes,” and, most importantly, (3) that people who participate in illegal activities have no expectation of privacy. The writer asks whether the opponent’s premises are correct, hoping that they are so obviously wrong (as they have been portrayed in the question) that the reader will answer the question with an immediate “of course not!”

If you can base your question on a premise that is both valid and applicable, you can go a long way toward getting the court to agree with your argument before it has even read your first point heading. Often, both sides will have valid and applicable premises on which to base their questions, and so both sides can exploit this technique to emphasize their point of view. When writing the question, remember that readers naturally pay more attention to information that appears in certain natural positions of emphasis—usually beginnings and endings—and try to put your best points in the beginning and especially at the end of the question presented. By planning your question in advance, noting what elements are most important and least important, you can structure your sentence to highlight your best points.

c. Problems to Avoid i. Assuming Elements at Issue

When writing questions presented, include facts and law that will help the readers to reach the conclusion you want them to reach. Avoid, however, assuming as true an element that is at issue in the case. A question that assumes an element at issue often asks, in essence:

BAD EXAMPLE Will this Court find that condition X exists when Appellant has established all of the factors necessary for condition X?

Even though you may firmly believe that all of the factors are there, your question should not assume away elements that your opponent legitimately disputes. Instead, include the facts and the law that you can use to prove that the court should decide in your favor.

For example, in the following question, the writer has assumed that no fundamental right has been violated:

BAD EXAMPLE

Do voter-initiated, state constitutional amendments that prohibit the enactment of legislation desired by an identifiable class comply with the Equal Protection Clause of the Fourteenth Amendment when such amendments do not violate a fundamental right?

Because the other side argued that the amendment did violate a fundamental right, the question assumes an element at issue. Instead, the writer should include the facts and law that he or she plans to use to show that no fundamental right has been violated:

GOOD EXAMPLE

Do voter-initiated, state constitutional amendments that prohibit the enactment of legislation desired by an identifiable class comply with the Equal Protection Clause of the Fourteenth Amendment when the amendments do not inhibit the right to vote?

This question focuses on the fact that the writer thinks is most important: Whatever else the amendments may do, they do not inhibit the fundamental right to vote.

In the following example, a different version of a question appropriate in Minnesota v. Carter, the writer has assumed that the issue of whether the defendant had a “reasonable expectation of privacy” has been met:

BAD EXAMPLE

Whether citizens have a constitutionally protected right to be free from a police officer’s covert observation into a private dwelling when that citizen reasonably expected and took measures to ensure that his activities would be shielded from the public’s view?

Instead of including the citizen’s “reasonable expectation” as a fact, the writer should include the facts that he or she will use to prove that the expectation of privacy was reasonable:

GOOD EXAMPLE

Under the Fourth Amendment, does a citizen have a right to be free from a police officer’s covert observation into a private dwelling when the citizen was sitting in a kitchen and the blinds on the windows had been closed against the public’s view?

This question still makes effective use of the enthymemes “citizens have a right to privacy,” “private dwellings are private,” and “covert observations violate privacy rights,” but it doesn’t sabotage itself by assuming the crucial element at issue.

In addition to violating rules of logic, questions that assume elements at issue needlessly annoy the judge or justice reading the brief, and fail to do the job of the question presented: to enlighten the court as to the issue or issues before it. The Honorable Fred I. Parker of the United States Court of Appeals for the Second Circuit has noted that questions that assume the element at issue “serve no useful purpose.”⁶ Furthermore, he notes, they may prejudice the judge against an attorney who would write such a useless question:

[A]fter reading such a statement, my natural instinct is to believe the actual issue probably involves [some other legal question], which the writer of the brief was not nice enough to clearly state for me and has instead left me to figure out on my own. I am, therefore, immediately less than sanguine about the brief and, consequently, the advocate and his or her client. Further, in failing to quickly be able to ascertain what the issues are, I may resort to the other brief for help.⁷

Thus, by avoiding the trap of assuming elements at issue, you can both preserve your credibility with the court and incline the judge or justice to rely on your brief for a fair analysis of the case.

ii. Overlong Questions

Writers who try a variety of persuasive techniques may also fall into the trap of writing a question that is too long. Questions that are too long are not read carefully—if they are read at all—and so any individual points that the writer may make in the question are lost to the reader, as in the following question, written by a student for one of the parties in Rubin v. Coors Brewing Co., 514 U.S. 476 (1995):

BAD EXAMPLE

Should the Supreme Court of the United States affirm both the District Court and Tenth Circuit Court of Appeals decisions to enjoin enforcement of that portion of 27 U.S.C. § 205(e)(2) and its pertinent regulation 27 C.F.R. § 7.26, which prohibit labeling malt beverages with their accurately measured and truthful alcoholic content and thus allow the plaintiff and other brewers of malt beverages to better inform the consumers of their products by placing the percentage of alcohol contained in the beverage on the beverage container’s label?

This question includes several valid premises—truthful information is good, informing consumers is good, it is legal to give accurate information to people—but the question’s length reduces its effectiveness.

The multi-sentence format may tempt some writers into crowding extraneous information into their questions:

BAD EXAMPLE

27 U.S.C. § 205(e)(2) is a prohibition-era statute that, with its pertinent regulation (27 C.F.R. § 7.26) seeks to prevent so-called “strength wars” by forbidding the inclusion of alcoholic content on the labels of malt beverages, even when that information is accurate and truthful. The District Court and the Tenth Circuit Court of Appeals both decided to enjoin enforcement of the anti-labeling aspects of those provisions, following a long line of authority. The Petitioners seek only the right, for themselves and other brewers of malt beverages, to better inform the consumers of their products of the contents of those products. The question presented is as follows:

Is a First Amendment prohibition valid when it forbids labeling malt beverages with their accurate alcohol content?

Writers who use the multi-sentence format must take care to stay focused on only the necessary information; other relevant details can be included in the body of the brief. The following question tries to accomplish substantive and persuasive goals without overwhelming the reader:

GOOD EXAMPLE

Under the First Amendment, is a prohibition against labeling malt beverages with their alcohol content valid when including the content on the label would allow consumers to have access to accurate and truthful alcohol content information?

d. Summing Up

When writing the question presented, strive to control the picture that the court has of your case by deciding what question you want to focus its attention on and by using appropriate writing techniques, including (1) giving the court a complete picture of the issue by including the legal context, the core legal question, and the relevant facts; (2) using appropriate enthymemes in the question; (3) structuring the question to highlight the positive aspects of the question; (4) avoiding assuming elements at issue; and (5) keeping the question to a reasonable length.