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.

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