Issue statements: Whether to use "whether"

Should legal briefs state issues as full-sentence questions or sentence fragments beginning with whether? Many authorities reject whether as ungrammatical, unwieldy, and stilted, and whereas Schiess and Einhorn advocate adapting form to purpose, they reject adaptations using whether. (Schiess, W. & Einhorn, E. “Issue statements —different kinds for different documents.” HT: The (New) Legal Writer.) Over-particularization in their otherwise useful survey obscures the main trend, which affords whether a role and explains the steadfastness of some excellent lawyers: whether is effective at litigation’s highest levels, and the form’s prestige generalizes. Schiess and Einhorn’s advice, depicted in the table, considers three formal variables: abstraction versus specificity, single sentences versus multiple sentences, and issue statement versus summary statement.

Reducing the table to a formula further condenses the information.

To the extent law, not fact, drives the issue, issue statements should be abstract and terse.

Facts in law-driven issue statements distract judges. (For contrary advice, see Garner, B. The Winning Brief [“the better approach is typically to weave concrete facts into your issue statements so that you tell a story in miniature, with names and all that”].) Expressing abstract legal issues in multiple sentences serves only to accommodate factual prolixity.

The criticisms of whether, when they have any merit, don’t apply to short, abstract statements. Whether’s main defect, the concomitant limitation to sentence fragments, applies only to issues involving facts. Another unsound criticism invokes a hyper-grammatical rule—no longer infecting legal writing—to avoid sentence fragments. As to stiltedness, whether starts an issue statement naturally: you wouldn’t answer the question “what’s the issue?” with another question. In resolving issues the court answers questions, but question and issue are distinct forms; avoid the question form if the predominance of law-driven issues allows. Supporting contrary advice, whether’s strongest critic Bryan Garner substantiates his disdain with the following multi-sentence issue statement.

The taxpayer owned coupon bonds. Several months before maturity of the interest coupons he detached them and gave them to his son, retaining the bonds themselves. Is he relieved of income tax with respect to the interest on the coupons?"

Garner’s issue presents a pure question of law, concisely stated as:

Whether interest on coupon bonds is subject to income tax following the taxpayer’s transfer of the coupons.

The date of the coupons' transfer or the identities of transferor and recipient is irrelevant, but after cutting Garner’s surplusage, you still might stick with the question format,

Is interest on coupon bonds subject to income tax after the taxpayer transfers the coupons?

Necessitating the extra mental operation, translating the question form into a proper issue, diminishes clarity, outweighing the question-form’s marginally greater concision

Formality. Part 4. The celebration of informality and the unsettled status of contractions

[Expand in separate window]

“Plain writing” means Informal register. As the Chart depicts, Informal is the better register insofar as Personal address (yellow) is direct and Hyper-grammatical rules (green) are disregarded; but Formal is better insofar as Succinctness (blue) is uncompromised and Universality (gray) is preferred. This assessment, it’s crucial to understand, brackets off register’s norms (Column 6): reducing or widening the gap between the (otherwise) effective and the normative is the measure of a trend’s help or harm.

Twice, the plain-writing trend beneficially shifted the prevailing legal register. First, it persuaded practically everyone that the Ceremonial register is ineffective. Second—its greatest triumph—it dethroned the Formal register’s Hyper-grammatical rules, and allied with the descriptive linguists, made laughing stock of pseudo-grammatical Formalities, such as avoiding conjunctions at the beginning of sentences or prepositions at their end.

But also, plain writing detrimentally shifted the prevailing register, favoring Naturalness over Succinctness to diminish written language’s unique expressive power. Some examples. Bryan Garner advises legal writers to average no more than 20 words per sentence; Wayne Schiess advocates (and writes) very short paragraphs; and plain-language exponents in general write loosely, with abundant phrasal verbs.

A collateral detriment comprises the insouciant breaches encouraged by plain-writing exponents, who tend to view brief writing from a writer’s standpoint more than a lawyer’s and fail to curb a writer’s natural resentment of stymying conventions. The best example is Bryan Garner’s suggestion to replace inline citation with footnotes, breaching the powerful status Formality by compelling the judge to change his work habits, an innovation worse than a distance-Formality breach of register. The suggested practice is distracting and inefficient, and it affronts the judge to steal expressive ease by imposing on him. Using an unorthodox citation convention assumes a risk whose harmfulness writers— convinced they’re improving their briefs’ persuasiveness, while really sabotaging it by angering the judge—might never discover.

Breaching mere distance Formalities by using the wrong register isn’t innocuous, and the contraction is the worst distance-Formality breach plain writers urge on us. (I was guilty of dispensing that bad advice when I analyzed the status Formality and excluded the distance Formalities.) Notice in the Chart that contraction avoidance is a Hyper-grammatical rule (green), but anomalously, its dominant register (column 6) is Formal. Avoiding contractions is the very strongest Hyper-grammatical rule: more than any other Informality, contractions smack of conversationality, and introducing them is alienating. The judge won’t think you’re uppity, as when you force him to adjust to different formats, but as Justice Scalia once remarked, he’ll infer you’re trying to be chummy.

A natural question is why the plain-writing trend not only challenges inappropriate Formalities but also repudiates the appropriate, especially by de-emphasizing Succinctness. After law departments commodified legal-writing instruction, plain writing’s teachability fortified it as the main reformist approach to brief writing. Meanwhile, commodification devalues writing teachers, isolating them and interesting them in reducing social distance. Writing teachers are an out-group in law, and the plain-writing trend, for good and ill, expresses their interest in abolishing the markers of social distance.

Linguistic "register" or What is formality in writing, and why do readers demand compliance with formality rules? Part 3. Choice of register

Click image to expand, preferably in separate window

The chart's new sixth column tells what's good and what's bad, what's in and what's out. Formal is the traditional register for law: what should be more formal than the relationship between judge and attorney? Informal register now vies for dominance, its jurisdiction extended by expelling (most of) the hyper-grammatical rules. Everyone agrees it's good you can now start sentences with and. The restriction was arbitrary, its grammatical pretensions dishonest. The false impression that the Informal register is better than the Formal is hard to resist.

Formal register shows its good side when the feature it enlarges improves a writing Virtue, like succinctness (for Concision) and universality (for Clarity). Legal writers should observe the hyper-grammatical and personal-reference Formalities the least that evades violating one, but they should retain (or acquire) the Formal features of succinctness and universality the most their skills allow.

Next part: The celebration of informality and the unsettled status of contractions