chevron-down Created with Sketch Beta.
June 02, 2020 Practice Points

For Effective Written Advocacy, Remember to Properly Frame Your Issue

What is it you need the court to focus on in order to prevail and how should you define that issue in a way that will help the court maintain that focus?

By W. Clay Massey

There are many necessities for effective legal writing. They include good organization, brevity, punchiness, legal support (and efficient discussion thereof) and reasoned argument. But one essential component (and arguably the cornerstone) of effective legal argument is often overlooked: properly framing the issue you are arguing. 

Framing an issue is the way you define and present the issue. It helps you get to the point and affects how (and whether) your audience sees your point, makes sense of your issue and responds to it. It is an essential step in getting your audience to understand and relate to your argument. It also creates the “object” about which the discussion before the court must occur and to which you can tether the responsiveness and characterization of an opponent’s counterarguments. And it will help you focus on the facts and law that matter to your argument and be a clearer and more efficient writer.   

Sometimes, properly framing an issue “simply” requires thoughtful word choice and statement structure to clearly and concisely express the issue being addressed. Bryan Garner has a great article on the challenges of that task and how to do it well—How to frame issues clearly and succinctly for effective motions and briefs.

But often, properly framing an issue also is what you say the issue is, not just how you say it. It requires substantive strategy and critical thought on how to position your argument. This involves taking your circumstances and the issue’s context and nuances of relevant law to strategically identify and articulate your issue in a way that will evidence your argument’s legitimacy, resonate with the court, and undermine counterarguments. This is particularly true when the law on your issue is not well-developed or where precedent decided on different facts or focused on slightly different issues presents superficial obstacles to your argument. You need to be able to distinguish your issue from the ones decided in those cases and navigate around them by focusing on a particularized and well-defined identification of the issue you are arguing.

So, before writing your next legal brief, start by thinking about how to frame your issue. What is it you need the court to focus on in order to prevail? How should you define that issue in a way that will help the court maintain that focus, follow your navigation of the facts and law, and not be misguided by your opponent’s counterarguments. Taking that time to properly frame your issue will provide a stronger platform for success in your written advocacy.

W. Clay Massey is a partner at Alston & Bird LLP in Atlanta, Georgia, and cochair of the ABA Mass Torts/Toxic Torts Subcommittee.

Copyright © 2020, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).