Questions Presented

Folks on #AppellateTwitter were talking about how to write good QPs recently, and I’m now finally getting around to posting some samples. A good QP will give the appellate court a clear sense of the issue that needs to be decided, while also framing the question in a way that suggests a particular answer. In most cases at the intermediate court of appeals, you can frame the issues as yes-or-no questions that seem to have an obvious answer that you want the court to reach. For example:

Did the district court err when, on a Rule 12(b)(6) motion, it ignored [Appellant’s] allegations and made factual findings to dismiss [Appellant’s] claims as untimely, even after [Appellant] presented evidence to contradict the court’s factual findings?

Or:

Did the state district court properly dismiss [Appellant’s] claims under res judicata after the same claims, based on the same nucleus of facts, had been previously dismissed by the federal district court?

Or:

Did the district court err by finding [Appellant’s] alleged prior breaches were material, when [Appellee] presented no evidence of materiality and only conclusory allegations that the technical breaches “mattered”?

The answer to the first question seems like it ought to be “yes,” so that’s a good QP for the appellant’s brief. The answer to the second question seems like it ought to be “yes,” too, which makes it a good question for the appellee’s brief. And the answer to the third question also seems like it ought to be “yes,” so it’s another good question for the appellant’s brief.

But note: the answer to your QP does not have to be “yes.” These QPs all happen to be framed for a yes answer, but you could easily frame them so that the seemingly obvious answer is “no.” You want the QP to suggest an obvious answer that goes your way, but it doesn’t matter whether the answer is yes or no. As long as it goes your way.

Some people prefer QPs in “whether” form, meaning they are presented in statement form instead of in question form. I go back and forth on this, and frankly I have no strong preference; I will use whichever form I happen to be in the mood to use on drafting day. The QPs above can be easily rewritten in “whether” form as follows:

Whether the district court erred when, on a Rule 12(b)(6) motion, it ignored [Appellant’s] allegations and made factual findings to dismiss [Appellant’s] claims as untimely, even after [Appellant] presented evidence to contradict the court’s factual findings.

Whether the state district court properly dismissed [Appellant’s] claims under res judicata after the same claims, based on the same nucleus of facts, had been previously dismissed by the federal district court.

The key here is to be sure you don’t use a question mark when posing the QP in “whether” form. In “whether” form, the QP is actually a statement of the issue (i.e., “The issue is whether…”). It’s not actually a question in that form, so it shouldn’t be punctuated like one. And this raises another relevant point: you should make sure your heading matches your QPs. If your heading says “Statement of Issues” then you should probably state your QPs in “whether” form. And if your heading says “Questions Presented” then…well, you should probably present questions. If your heading says “Issues Presented”…well, then take your pick I guess. (I’m realizing as I write this that I probably have not always made sure that my heading matches my QP form, so I hereby beg forgiveness for past transgressions.)

As some noted when the QP discussion arose on Twitter, there’s an important exception to the usual goal of framing the QP as though there’s an obvious answer. That exception arises when you’re petitioning a court that has discretionary review. Typically, a court with discretionary review (e.g., the U.S. Supreme Court or the Texas Supreme Court) will grant review only in cases that present issues that are both important and undecided, which is another way of describing cases that present “hard questions.” As petitioner, you don’t want a QP that seems to have an obvious or easy answer, or it might sound like your appeal is merely about error correction (and thus not important enough for discretionary review).

There seems to be a split among SCOTUS experts and practitioners, over the best approach for presenting a question to SCOTUS. One approach is to spend a paragraph or two (or even three) setting up the context for the question, before presenting the question, so that the QP takes up half or even all of the page. (Even with this context-rich approach, your QP should never cross onto a second page, in my opinion.) The other approach is to simply present the question and develop the context in the body of the petition. I tend to favor the latter approach—but plenty of SCOTUS practitioners with more experience have embraced the former. (And now I’m prompted to wonder whether Adam Feldman has ever looked at how frequently each QP style is used, and by whom, and whether one style has a better grant rate than the other—that would be very interesting to know!)

Anyway, the main point is that—whether you use a context-rich approach or not—your QP should be a little more open-ended when you’re petitioning for discretionary review. The actual QP (minus the context that might precede it) might looking something like this:

Whether the district court has jurisdiction to expunge an individual’s criminal record on equitable grounds.

Or:

May a criminal defendant’s appeal be dismissed as knowingly waived under the plea agreement, when there is no transcript of the Rule 11 colloquy that is designed to determine whether the defendant knowingly entered the plea agreement?

Or:

Should the Court’s decision in [case name] be overruled?

In each of these cases the QP might be prefaced by context or not. Either way, the question is still typically posed as having a yes-or-no answer. But it is less clear (from the question itself) what the answer might be. This is by design. As a petitioner asking the court to grant review, you want the question to seem both important (i.e., in need of resolving) and difficult (i.e., not already resolved by the lower courts), so that it warrants the higher court’s involvement.

Typically, this will apply only to the petitioner. The respondent will usually want to respond as in any other appeal in the intermediate court—by trying to reframe the QP so that it sounds like the question is actually pretty easy and the lower court has (obviously) gotten it right.

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