Monday, February 21, 2011

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

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