Asking the Right Question (Or the Importance of Issue Crafting)

Asking the Right Question (Or the Importance of Issue Crafting)

Written by Megan M-P., OLN Freelance Attorney.

When I was young, I saw a played called Copenhagen, set during World War II. The play’s characters consisted of Niels Bohr, Niels Bohr’s wife, and a young scientist named Werner Heisenberg. The characters spent the entire three hour performance cycling around one question: “Why did Heisenberg go to Copenhagen to meet with Niels Bohr?” In the end, they all realize that Adolf Hitler sent Heisenberg to meet with Bohr to discover the secrets of developing an atomic bomb. However, Heisenberg fails to ask Bohr the right question and the secrets, as well as the war, slip through Hitler’s fingers. It easily is realized that one single question could have changed the tide of human history forever.

This was my first, but not my last introduction to the importance of asking the right questions. Once I entered law school, it became abundantly clear that asking the right question was the difference between winning or losing a case. In the same way that asking the right questions is critical to arriving at the right answers, carefully crafting the issues is vital to one’s successful arguments.

Recently, attorneys on both sides of the infamous Affordable Care Act case grappled with framing the issues in a way that favored their arguments. And, although the Supreme Court sided with one party, neither side crafted the issue the way the Supreme Court did. Issue framing is an art form and, as Bryan Garner states, “…it’s the most important aspect of a lawsuit.”

Below are some tips for writing issue statements that are clear and persuasive:

1.)    Eliminate ALL CAPS – For many new lawyers, this is axiomatic. However, there was a time not too long ago, when all issue statements were written in all caps. Unfortunately, the uniformity of all of the letters makes it difficult for the brain to process the words. The brain recognizes letter shapes and not individual letters, therefore the most readable issue statements will include capitalization of the first word in the issue statement and any proper nouns.

2.)    One Answer – With a resounding “yes” or “no,” the judge should be able to answer the question posed in the issue statement.” Too many issue statements combine issues and sub-issues. Remember that the issue statements also are attempting to persuade, just like the rest of a brief or memo. It should be easy for the reader to answer with a simple word, yes or no, the question posed in any issue statement (especially after reading the arguments and analysis).

3.)    Relevant Facts – Don’t forget that issue statements are a judge’s first introduction of the application of the facts to the law. We should include the relevant facts of our case as much as possible in our issue statements. However, it’s important to limit these facts to the salient ones. Just like combining too many issues, combining too many facts also can muddy up our issue statements.

As with all writing, self-editing and revision is imperative in legal writing. We should spend as much time crafting our issue statements as we do on any other sections of our brief or memo. They are the skeleton that supports and guides our arguments and they can be the difference between winning or losing a case.