Much Ado About Issue Statements
The Journal of the Kansas Bar Association, Vol. 83, No. 3, 2014
Posted: 21 Aug 2014 Last revised: 17 Mar 2017
Date Written: August 19, 2014
Issue statements are one of those things that legal writing “geeks” can debate endlessly. Which is better: the simple, clean “whether”-style question we all learned in law school, or a longer statement that includes some helpful factual background, and maybe even a rule? Many lawyers and judges strongly prefer one over the other.
While a “whether” statement remains strongly suited to pure questions of law, a mixed question of law and fact is difficult to grasp without context. The critique of fuller issue statements usually lies in two places: (1) they are too long and inefficient; and (2) they tend to lapse into argument and thus lack objectivity. The critics make a good point. However, those valid concerns really have more to do with undisciplined writing, and not with the medium itself. Any style of well-executed issue statement can be both efficient and objective.
The keys to an effective multi-sentence issue statement include (1) increasing objectivity by acknowledging and countering facts harmful to the clients position; (2) writing efficiently by limiting to 75 words, removing extraneous details, and using legally decisive facts rather than general background. The examples in this essay come from the newsworthy contraceptive health coverage cases in the Seventh Circuit. Both briefs employ an increasingly popular hybrid model: a paragraph of context followed by a series of short “whether” statements.
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