LEGAL METHODS COMES BACK TO HAUNT – THE NEED FOR PROPERLY FRAMED ISSUES
by MARY WAGNER
wishing we were learning something more exciting and certainly more important, like contracts and property law. Surely, we thought, this class will never be of use to us in our careers as future litigators. Little did we know that this writing class was one of the most important and most practical classes of our law school career. As a lawyer, no matter what type of practice you may have, the ability to communicate effectively through written words is an invaluable skill.
W In the hustle and bustle of daily law
practice, writing is a skill often quickly passed over and even scorned as boring and time-consuming. But writing is a talent and skill that if not utilized daily and appreciated may come back to haunt, no matter how skilled or specialized you may be in your area of practice. In November 2012, the Tennessee Supreme Court released
its opinion in Hodge v. Craig, 382 S.W.3d 325 (Tenn. 2012), and reminded us of the importance of careful legal writing. Making statewide and even national news, the Court affirmed the trial court and allowed the first claim of paternity fraud in Tennessee. News and headlines sounded for months about this “new tort” that would rock the family law world.1
But, it
is the Court’s discussion on the parties’ briefs that every lawyer should read and learn from. In its decision, the Court provided an in-depth discussion that demonstrates the importance of mindful brief writing.2 While not nearly as sexy a topic as “paternity fraud,” it is a topic far more important to all practitioners, yet commonly overlooked.
Speaking through Justice Koch, the Court
instructed counsel on the importance of properly framing the issue on appeal. In Hodge, the Tennessee Supreme Court found that both
the Appellant and the Appellee presented two issues for review in their respective statements of the issues.3
But, the Appellee
also presented legal argument on three additional issues in the argument section of her brief. Luckily for the Appellee, the Court exercised its discretion and considered one of the issues not properly raised.4
But, the Court noted that the Appellee,
“would have been well-served had the statements of issues in the brief she filed in [the] Court contained explicit issues matching the points in the argument section of her brief.”5 Would a proper statement of the issues have changed the outcome of this matter on appeal? Perhaps, though it is not clear from the opinion. What is certain is the Tennessee Supreme Court’s reminder of the need to be careful and deliberate in our legal writing.
As explained by the Court, “a properly framed issue may be 20
e all remember that dreaded first-year required class – Legal Methods or whatever your school may have labeled it. We sat through this class
the most important part of an appellate brief.”6 A statement
of the issue has two critical purposes: (1) preserve the issue and (2) begin to advocate for your client. Te Tennessee Rules of Appellate Procedure provide that an issue may be deemed waived when it is argued in the brief, but not properly designated in the required statement of the issues.7 Under Tenn. R. App. P. 13, the courts do have discretion to consider an issue despite the fact that it has not been raised as required. But, one would be silly to rely on the courts to save you from your own negligence in drafting. Recent court decisions demonstrate an increasing number of briefs failing to properly raise issues; thus, often resulting in waiver of a legal issue otherwise properly appealed. 8 To avoid the potentially deadly risk of waiver, the legal
writer should frame the issue as specifically as possible in the statement of the issues section of the appellate brief.9
Tis
rule applies to both appellants and appellees. An appellee may reframe the issues presented by an appellant if they find the appellant’s explanation of the issue unsatisfactory.10 Additionally, an appellee may also present their own issues, seeking relief on their own accord.11
to know immediately what questions they are supposed to answer.”12
right answer usually depends on putting the right question.”13 Courts do not want to search for hidden questions.14
“In law the Use your
issue statement as an opportunity to define the question and begin disposing the court towards your position.15
Often, the
outcome is determined by the approach taken to the issues. Accordingly, a legal writer should draft the issue in such a way that if the legal premise in the issue is accepted, then the court has no choice but to rule for the drafter.16
To accomplish
this, one should be sure to include both facts and law in the statement of the issue. Te facts should be set forth sufficiently to inform the reader. Te legal premise should be set forth in such a way as to require a result in your favor given the facts provided. Tis being said, clarity and simplicity is key. Too often issue statements are long cumbersome conglomerates of words and phrases that a court must muddle through, finishing dazed and confused. When this occurs, the drafter misses out on the first opportunity to advocate for his or her position. Do not find yourself the lawyer in a Tennessee Supreme
Court or Court of Appeals opinion being called out for failing to list an issue in the statement of issues, resulting in a waiver of that issue despite whatever brilliant legal argument you may have. Heed the tips from Justice Koch in Hodge v. Craig and dust the cobwebs off the lessons learned in your first year of law school. Use these skills to be an artful and deliberate
Anything short of this may cost you a successful
appeal. With regard to the second purpose, the statement of the issue may prove to be outcome determinative.
“[A]ppellate courts prefer
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