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.

Rewriting Paragraphs

In a post a while back, I rewrote the opening paragraphs of a motion to demonstrate the decisions that are made in revising and editing legal writing. And because I come across lots of paragraphs (in motions, briefs, and opinions) that would benefit from revising or editing, I’ve decided to make this a regular thing: every once in a while, I’ll rewrite a paragraph here, to show how legal writing can be improved.

So here’s an opening paragraph as it appears in a reply brief that was filed in an appellate court (with party names changed):

Company presents two arguments in response to Strummer’s challenge that there is no direct causal link between Strummer and Company’s alleged lost profits. First, Company does not dispute that the jury was instructed to only consider damages from “lost profits” “and none other.” Second, Company also does not dispute that it’s expert witness presented only a lump-sum lost profits damages calculation. Third, Company does not dispute that the contract at issue with Strummer is an employment contract between Strummer and Company. Instead, Company presents two theories, arguing that Strummer is responsible for stolen inventory and for the departure of distributor Johnny Rotten, and suggests that the jury may have identified damages connecting Strummer to these events.

Now, here’s the rewrite:

Strummer has demonstrated there is no evidence of any causal link between his actions and Company’s alleged lost profits, so the district court erred in awarding damages . To defend the damages award, Company now contends that Strummer was responsible for stolen inventory and for Johnny Rotten’s departure, and claims the jury could’ve identified and awarded damages based on these two events. But Company does not dispute that the jury was instructed to consider only “lost profits” as a basis for damages, “and none other.” And Company likewise does not dispute that its damages expert presented evidence of only a lump-sum amount of lost-profits damages. Thus, the jury was instructed not to consider any evidence of damages based on stolen inventory or Johnny Rotten’s departure—and none was presented to consider. So even if Company’s new theories about Strummer being responsible for stolen inventory or for Johnny Rotten’s departure were correct, they still wouldn’t support the district court’s judgment.

I think the second version is much better. But, as in my previous post, I’ll let the rewrite speak for itself, rather than trying to explain each change and the reasons behind it. The key for improving our writing is to read carefully and to think about how good writing is good—i.e., what is being done, exactly, line by line, to make it good—so that we can replicate those moves in our own writing and editing.

Two Recent Articles

I’ve really slacked on blog posts lately. But I do have two articles that were published recently. In November, I wrote an article on “Current Class-Action Issues.” And today my article on “Cleaning Up Quotations in Legal Writing” appeared in the ABA’s Appellate Practice newsletter. Hope they’re helpful!

ABA Journal’s Web 100

A big congrats to all the honorees for this year’s Web 100! The ABA Journal has changed things up a bit. This used to be an honor reserved for the top 100 legal blogs (i.e., “blawgs”), but this year they decided to start honoring other forms of digital media. So the list now includes 50 blawgs, 25 law-related podcasts, and 25 law-related Twitter feeds.

Personally, I think it would’ve been cool for the #AppellateTwitter community to have received collective recognition under the hashtag. Maybe next year. For now, there are a bunch of #AppellateTwitter regulars on the list, including Chief Judge Stephen Dillard (@JudgeDillard); SCOTUS reporter Chris Geidner (@chrisgeidner); legal-writing guru Ross Guberman (@legalwritingpro); law profs Rachel Gurvich (@RachelGurvich) and Elizabeth Joh (@elizabeth_joh); and yours truly (@5thCircAppeals). Go follow!

And you should definitely check out the top-25 podcasts, too!

Review: A Manual of Style for Contract Drafting

I haven’t written a book review in over 10 years, so I’ve probably lost touch with the conventions of the form. I’m not sure, for example, if it’s kosher to just say “This book is great, you need this book, go and buy this book.” Is there supposed to be some kind of prelude or set-up before making a recommendation? I can’t remember. So I’m just going to say it: lots of lawyers should go buy Ken Adams’ fourth edition of A Manual of Style for Contract Drafting. That’s the nutshell version of my review. This book is great. You need this book. Buy this book. (The image on the right has a link to the publisher’s site, where you can buy it.)

As an authority on legal writing, Adams is the contracts-specific version of Bryan Garner. If you’re a lawyer who drafts contracts, this book is obviously for you. (Did you see the title?) In fact, you probably already own a prior edition. I’m not familiar with the prior editions, so I can’t speak to what has been changed or added for version 4.0. But contracts continue to evolve and continue to be the subject of litigation—and Adams’ manual is well designed to help you improve the clarity and precision of your contracts, which is another way of saying it is well designed to help your contracts hold up in litigation—so, even if you already have an older edition, I can’t imagine why you wouldn’t want this, the latest, most up-to-date guide for improving the clarity and precision of your contracts. In short, if you’re a contract writer, you need this book.

But more importantly (from where I sit), litigators need it too. Seriously. I dug into this manual as someone who cares about good legal writing in general—but I also went through it with the eyes of a litigator. And I’m telling you: any litigator who handles litigation over contracts (or agreements, or covenants, or even rules, regulations, or statutes) ought to be interested in having this manual on her desk.

Chapter 1 has a brief discussion of “optimal” contract language. Chapter 3 discusses categories of contract language (e.g., “Language of Performance,” “Language of Obligation,” “Language of Discretion”). Chapter 4 discusses contract organization (e.g., sections, subsections, cross-references). Chapter 6 discusses the use of defined terms. And Chapters 7–15 discuss aspects or components of contracts that regularly become issues in litigation (e.g., the term “material adverse change,” references to time, syntactic ambiguity).

Each chapter is of interest not only to the contract drafter, but also to the contract litigator. For example, Chapter 8 discusses the common contractual requirement that a party use “reasonable efforts.” This discussion is helpful not only for the lawyer who must draft a contract to include this requirement, but also for the lawyer who must handle litigation over this requirement. First, the chapter is a good place to begin researching the law on this contractual term (see ¶¶ 8.36–8.64, discussing caselaw about the meaning and enforceability of “reasonable efforts” provisions). And even better: the chapter includes original research content (see ¶¶ 8.19–8.32, discussing the history of and difference between “reasonable efforts” and “best efforts”), which litigators might want to cite as authoritative, when making arguments about how a court should interpret these provisions—the same way we sometimes cite Scalia and Garner’s book on canons of textual interpretation.

Like I said, you need this book. And as an added bonus—for the true legal-writing nerds out there—the book even includes a chapter on contract typography (Chapter 16).

I don’t agree with everything that Adams says, when it comes to style recommendations. For example, Adams takes a hardline stance against using contractions in contracts. (See ¶ 17.36.) As I’ve made clear in the past, I don’t share this aversion to contractions, even in the most formal legal writing. And I also wish Adams had provided a more extensive discussion of the proper or best uses of punctuation (at ¶ 17.37)—perhaps with some examples of how punctuation has become the subject of litigation. But maybe that’s part of what he’s planning for version 5.0.

In the meantime, go buy version 4.0. It’s a must-have for your legal-writing reference desk. And I’ll race you to see who cites it first in a brief about contractual interpretation.

UPDATE: Adams points out (correctly) that I missed some of his discussions of punctuation in my perusal of this edition, because they pop up in other parts of the book instead of in the short section labeled “Punctuation.” Readers looking for tips or insights on punctuation should be sure to check the index for terms like punctuationcommacolon, etc.

Steed Style Guide, pt. 1

Complaints about The Bluebook have become commonplace. I have many. This, combined with the new availability of The Supreme Court’s Style Guide and The Solicitor General’s Style Guide—and with the longtime presence of Garner’s The Redbook, and with the presence, in Texas, of The Greenbook—has led me to become eclectic in my style choices, when it comes to brief writing. (I also have traces of MLA style still in me, from my days in academia.) Thus, over the years I haven’t been very consistent. I mean, I’m always consistent within a brief, to be sure—that’s imperative. But I haven’t been very consistent from brief to brief (or, more precisely, from case to case). Instead, I’ve been trying things out, here and there, to see how I like this or that.

Now, though, I think I’ve settled into some fairly consistent stylistic preferences that I’m going to go ahead and codify (here, on this blog) in my own personal style guide—with the caveat, of course, that I might change my mind at any moment.

So, without further ado, here is the first installment of the Steed Style Guide:

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Revisions as Decisions

TexasBarToday_TopTen_Badge_VectorGraphicA good way to teach (and to learn) good writing is by demonstration. So, in an attempt to demonstrate how to improve the first two paragraphs of a motion, I’m just going to show you what the two paragraphs looked like before and after the revision.

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Recent & Upcoming Activities

A busy calendar.The last couple months have been busy. In addition to the holidays, I argued at the Fifth Circuit; published two articles at The Huffington Post (here and here); produced a podcast episode on appellate practice for the ABA’s Sound Advice series; gave a presentation to the Dallas Bar Association (about the post-election Supreme Court and Trump’s list of possible nominees); participated in a panel discussion about e-briefs and legal writing at the annual meeting of the Council of Chief Judges of State Courts of Appeal (in North Carolina); was cited on SCOTUSblog and the Appellate Advocacy Blog (both here and here); and was quoted by Bloomberg (herehere, here, and here), CNN, and the Winnipeg Free Press.

This month I’ve got an article forthcoming in Texas Lawbook (about the Garland fiasco and Trump’s possible SCOTUS nominees); I’ll be in Austin on January 20, leading a workshop on legal writing at Lawyer Forward; and I’ll be in Utah January 21-24.

Using Contractions: It’s Not Wrong

contractionI’ve been wanting to write this post for some time. Inherited wisdom says you can’t use contractions in legal writing because it’s too informal. Poppycock. There’s nothing wrong with using contractions. Like anything else (e.g., em dashes, semicolons, commas, capitalization, boldface for emphasis), you shouldn’t over-use them. But contractions are a perfectly acceptable tool to include in your legal writing toolbox. Don’t believe me? Let’s consult the authorities.

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Sentence Diagramming

Judge Gorsuch of the Tenth Circuit is in the news lately as a short-lister for the Supreme Court vacancy. (See here and here, and my previous post here.) Gorsuch would be a great pick and a fitting replacement for Justice Scalia because, like Scalia, Gorsuch is known for his clean, incisive, and sometimes witty or colorful writing.

Almost two years ago (2/15), Gorsuch wrote an en-banc opinion in United States v. Rentz that I saved because it provides a great example of using sentence diagramming to facilitate statutory interpretation. In other words, it’s a great example of using a visual image to advance an argument.

Rentz is about criminal sentencing and interpreting section 924(c). Here’s a screenshot from the opinion:

gorsuch

 

I’ve done this in a case involving contract interpretation, and it can be very effective—especially when dealing with a complicated statutory or contract provision that contains lists or has lots of subordinate clauses. It’s also the sort of thing I could see Scalia doing. (Seriously, he probably did it numerous times over the 30 years he sat on the Court, and I’m just not remembering those opinions.)

Anyway, while everyone’s talking about the SCOTUS vacancy and Gorsuch as a short-lister, I thought I’d throw this out there as something to remember in your brief writing. And the whole opinion is worth reading for examples of good writing.