August 26, 2019 Articles

What’s the Question?: Framing Issues on Appeal

Make it as easy as possible for the court to want to hold in your favor as soon as it reads the question on appeal.

By Sylvia H. Walbolt

Not long ago, I heard a renowned, recently retired appellate judge in Canada, the Honorable Eleanor A. Cronk, speak about what she would do if she returned to appellate practice today—with the benefit of her decades on the bench. One of the two things she said she would do is to spend more time framing the issue on appeal in her appellate briefs. I had been doing some hard thinking about that very issue and decided to put my thoughts on paper after hearing her reflections.

Perhaps the most famous framing of an issue on appeal was John R. Davis’s succinct and pointed question to the U.S. Supreme Court asking whether one of its prior precedents was still the law of this country. But appellate issues usually are not so easily framed or so clear-cut. In my own jurisdiction, the Florida Supreme Court frequently reframes questions that have been certified to it by the Eleventh Circuit Court of Appeals, and then answers the questions only as reframed.

If your issue on appeal is truly as clear-cut as that in Davis’s appeal, borrow a page out of his playbook and keep it that focused and that simple. But just in case it is not, here are thoughts on how to go about effectively framing your issue(s) for the appellate court.

Narrow Framing

First and foremost, stand back from your heartfelt advocacy and think hard about what the appellate court likely will be most comfortable in holding in the appeal and, more to the point, what it would say about that holding in a published opinion. Make it as easy as possible for the court to want to hold in your favor as soon as it reads the question on appeal.

That almost always will be the narrowest way the court can hold for you. Where possible, therefore, let the court know up front, from the question you present to it, that it need not grapple with serious jurisprudential consequences and slippery slopes in order to hold in the manner that you are advocating.

Stating the issue broadly and vaguely—e.g., “Did the trial court err in entering summary judgment for the the defendant?”—leaves the court uncertain as to exactly what it has to determine first in order to answer that ultimate question. In contrast, stating the issue narrowly and very precisely—e.g., “Did the trial court err in concluding there were no facts in dispute regarding the cause of the plaintiff’s injury from the defendant’s negligence?”—lets the appellate court immediately hone the exact issue that it must resolve to decide the appeal.

Don’t frame the issue by assuming the very matters in dispute:

No:      “Does the plaintiff’s failure to comply with conditions precedent to her medical malpractice suit require reversal of the judgment in her favor?”

Yes:     “Does the record establish that the plaintiff failed to comply with the statutory notice requirements for filing a medical malpractice suit?”

In other words, resist the urge to resolve factual disputes in your favor when framing the issue. The court will see through a question framed such that it assumes the answer to it or treats your version of disputed facts as undisputed.

That is not to say, however, that you should not—in an appropriate case—“‘load the question with the facts’ . . . fairly stated, so that ‘you can almost win the case on the mere statement of the question it presents.’” William Pannill, "Appeals: The Classic Guide," 45(3) Litigation 1, 38 (Spring 2019) (quoting Colonel Frederick B. Wiener, Effective Appellate Advocacy 74 (1950)). When your uncontroverted facts are that good, go for it.

Standard of Review

Remember—and honor—the standard of review in framing each question on appeal. In fact, if you cannot craft a good question under the applicable standard of review, you should give serious thought to dropping that issue on appeal.

In all events, never use the “Question Presented on Appeal” as the place to vent about how outrageous the judge, jury, or other side was in the case. Prepare a question that will help the appellate court properly decide the appeal, not make your client or trial counsel feel good from your hyperbole.

One effective way to frame the question on appeal, as Davis long ago taught us, is to tie the issue to a decision or statute that you contend is controlling on the issue on appeal. For example: “Was the plaintiff required under [decision, statute] to provide the defendant with written notice supported by a medical expert before filing her medical malpractice claim in this case?”

If, on the other hand, you are asking the court to change the law on the issue in your case or create some exception under the circumstances in your case, be open with the court that you are doing this. For example: “Was compliance with the usual statutory notice requirement for medical malpractice actions unnecessary where the defendant’s own records establish its knowledge that the malpractice was in fact committed by its agents and employees?” or “Should this court recede from Frye as the test for expert testimony and now join the overwhelming weight of authority by adopting Daubert as the test?”

Don’t try to hide the ball from the appellate court about what truly is at issue. You won’t succeed in doing so and you will just irk it, which is not good advocacy for either an appellant or an appellee. If you don’t properly frame the issue before the court, you effectively cede to the opposite party or the court the right to do so.

Connecting Issues

Always consider whether you can frame the issues on appeal so that they build on one another to lead to the result you seek:

Issue One: “Was the county’s decision to maintain the status quo under its land use plan ‘fairly debatable’?”

Issue Two: “Was the county’s decision to maintain the status quo under its land use plan so irrational as to violate the due process rights of the property owner?”

The appellate court may be on the fence regarding Issue One, but its analysis on that issue could tip the court over to your side on Issue Two.

Point of View

In deciding how to frame the issue on appeal, remember that appellate courts often have explained that “‘when the right point of view is discovered, the problem is more than half solved.’” See, e.g., Schlange-Schoeningen v. Parrish, 767 F.2d 788, 789 (11th Cir. 1985) (quoting Ellison v. Ga. R.R. Co., 13 S.E. 809, 813 (Ga. 1891)). When the Parrish court recited facts of a land seller’s egregious fraud on the purchaser, the court found that, given these facts, “[i]n our view, the problem is more than half solved.” It then proceeded to hold in favor of the purchaser, saying that the merger clause of the purchase and sale agreement did not bar the purchaser’s claims for this fraud.

In the end, then, the appellate court may answer the question on appeal, however tightly framed, based on its own “point of view” derived from the facts. In framing the question, the wise appellate practitioner always bears in mind the appellate court’s likely point of view on the record before it.

Drafting and Redrafting

So, is it better practice to draft the questions on appeal before you draft any other part of the brief, or only after the facts and arguments are already on paper? Reasonable people can disagree. But no one can dispute that, once the brief has been fully drafted, you always must look with cold, objective eyes on the questions you have prepared for the appellate court to answer.

And, when you do that review, make sure that the question(s) you have framed dovetails with your short, in-a-nutshell introduction and your summary of the argument. That will ensure that you put the best point of view forward to the court to get a favorable result on appeal.

My guess is that you always will rewrite those questions and fine-tune them at the end of the drafting process. But that does not necessarily mean it was useless to engage in that exercise in the very first instance. After all, that analytical process should govern how you write your facts and legal arguments, which hopefully will lead the appellate court to inexorably answer the questions ultimately framed by your brief in your favor.

Sylvia H. Walbolt is a shareholder of Carlton Fields in Tampa, Florida, a former president of the American Academy of Appellate Lawyers, and a fellow of the American College of Trial Lawyers.


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