Appealing formulation of the questions presented.

• Jurisdiction: United States

Section 31. Appealing formulation of the questions presented.—Another essential of an effective appellate brief is the appealing formulation of the questions presented on the appeal—and "appealing" in this connection means the phraseology that will most effectively impel the reader to answer the question posed in the way the writer wants him to answer it. Consequently this is an extremely important item, particularly since by stating well the question presented you are really choosing the battleground on which your litigation will be contested.

In a number of circuits, the rules provide that the questions presented must be set forth at the outset of the brief, ahead of any other portion.⁶³ The Supreme Court similarly requires that the questions presented appear early in briefs, petitions for certiorari, and jurisdictional statements.⁶⁴

The formulation of the question is of particular importance whenever review is discretionary, the most usual example being certiorari in the Supreme Court.⁶⁵ There the grant or denial of the writ frequently depends in very large measure on the framing of the question. On behalf of the petitioner you help to induce review by making the question appear important and the result below wrong. Contrariwise, when the object to be obtained is the denial of review, the question should be framed in such a way as to minimize the importance of what is involved.

Two forms will fit almost every case. The first and more usual form is to use a sentence beginning with "whether"; e.g., "Whether post-mortem declarations are admissible." The second, usually appropriate only for the more complicated cases, is to state the salient facts and then to add, "The question presented is whether in these circumstances the later proceeding is barred by the earlier judgment." This second method may also be appropriate whenever the simple statement of the question does not make the case appear to be sufficiently interesting or appealing.

In using the first form, the essential technique, generally, is so to load the question with the facts of the particular case or with the relevant quotations from the statute involved, fairly stated, that you can almost win the case on the mere statement of the question it presents.

Rules of court that ask for a statement of the question presented to be "expressed in the terms and circumstances of the case but without unnecessary detail" are not violated by such an inclusion of relevant facts.⁶⁶ Other rules appear to require the questions to be stated "in the briefest and most general terms, without particulars of any kind."⁶⁷ The brief-writer must of course comply, but even a short and generalized formulation can be made thoroughly appealing.

Some judges seem to feel that advice to phrase a question ap-pealingly is tantamount to a suggestion for deceiving the court, so that by slanting the question, or even by twisting it out of shape, a busy tribunal may be led to reach an answer favorable to the party. Here again, this is a view that reflects misapprehension of the purpose and content of advocacy.

Let me repeat the caveat already set forth: fairly stated. If an excess of zeal leads you to...