June 03, 2019 Articles

What Timbs v. Indiana Can Teach Appellate Lawyers about the Question Presented

To reach the right answer, your appellate brief must present the right question.

By Adam C. Reeves

It is a familiar refrain that the “Question Presented” or “Statement of the Issue” can be the most important yet overlooked portion of an appellate brief. Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 83 (Thomson West 2008). In fact, Justice William Brennan once wrote that “[i]n a substantial percentage of cases I find that I need read only the ‘Questions Presented’ to decide how I will dispose of the case.” William J. Brennan Jr., The National Court of Appeals: Another Dissent, 40 U. Chi. L. Rev. 473, 477 (1973). Accordingly, there is no shortage of guidance for how to strike the right balance of detail, persuasion, and pith in a question presented or statement of the issue. See, e.g., Bryan Garner, How to Frame Issues Clearly and Succinctly for Effective Motions and Briefs, A.B.A. J. (Mar. 6, 2019). But it’s not just how you phrase the question that matters. As the state of Indiana recently learned in Timbs v. Indiana, you have to ask the right one.

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