EVERGREEN SUPREME COURT
APPELLATE ADVOCACY PROJECTWRITING THE APPELLATE BRIEF: QUESTIONS PRESENTED
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, you will not be expected 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).
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
Both of the following questions presented are from one of the briefs in the case of R.A.V. v. St. Paul, 505 U.S. 377 (1992). In that case, it was alleged that in the middle of night, R.A.V. burned a homemade cross in the fenced yard of an African American family that lived across the street from him. He was prosecuted under the St. Paul, Minnesota "Bias-Motivated Crime Ordinance," which provided that "whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor." How can you tell whether these two questions presented appeared in the petitioner's (R.A.V.'s) brief or in the respondent's (St. Paul) brief?
1. May a local government enact a content-based, "hate-crime" ordinance prohibiting the display of symbols, including a Nazi swastika or a burning cross, on public or private property, which one knows or has reason to know arouses anger, alarm, or resentment in others on the basis of race, color, creed, religion or gender without violating overbreadth and vagueness principles of the First Amendment to the United States Constitution?
2. Can the constitutionality of such a vague and substantially overbroad content-based restraint of expression be saved by a limiting construction, like that used to save the vague and overbroad content-neutral laws, restricting its application to "fighting words" or "imminent lawless action"?
One of the following questions presented appeared in the brief of the petitioner (State of Texas) and the other in the brief of the respondent (Johnson) in Texas v. Johnson, 491 U.S. 397 (1989. Can you identify which one was which?
Whether a state law that penalizes such "physical mistreat[ment]" of "a national flag" as the actor "knows will seriously offend one or more persons likely to observe or discover his action,"facially violates the First and Fourteent Amendments to the United States Constitution.
Whether a state law, as applied to the peaceful burning of an American flag at an overtly political demonstration, an act of symbolic speech closely akin to pure speech, violates the First and Fourteenth Amendments to the United States Constitution.