“I have always been much better at asking questions than knowing what the answers were.” – Bill James, baseball historian
There may be no more daunting task in all Supreme Court practice than distilling a 9,000-word cert. petition down to one or two questions presented. This level of difficulty should come as no surprise—only the U.S. Supreme Court requires a formal Question Presented (although the federal courts of appeals and some state courts do require issue statements). Even if you do not regularly file petitions to the Supreme Court, there are a few techniques you can use to improve the formulation of your QP.
Supreme Court Rule 14 describes the content of the QP page. The QP should be “expressed concisely in relation to the circumstances of the case, without unnecessary detail . . . [and] should be short and should not be argumentative or repetitive.” S. Ct. R. 14.1(a). This Rule is not the Court’s only guidance. In Yee v. City of Escondido, 503 U.S. 519, 535 (1992), the Court explained that litigants seeking review are not bound by how the question was framed in lower courts. And while the Court has, on occasion, rephrased the QP, by and large “it is the petitioner himself who controls the scope of the question presented . . . generally fram[ing] the question as broadly or as narrowly as he sees fit.” Id.
One purpose of a QP is to provide the respondent “notice” of the claims sought through certiorari, allowing respondent to “sharpen the arguments as to why certiorari should not be granted.” Yee, 503 U.S. at 535-36. It also conserves the Court’s resources by narrowing the legal issues. Id. Within the certiorari process, the QP serves another distinct function: it allows overburdened Justices and their Clerks the opportunity to understand the case with one glance of a page, because frequently, the Court’s first introduction to a case is through the QP. Thus, QPs which fail from the outset to illuminate the case—and its possible cert-worthiness—lose that all-important chance at a favorable first impression.
The preeminent guide on Supreme Court practices notes that the QP page is one of “[t]he most important pages in the entire [petition for a writ of certiorari] document.” Eugene Gressman, et al., Supreme Court Practice, at 452 (9th ed. 2007). The late Supreme Court Justice Antonin Scalia explicitly endorsed this sentiment. See, e.g., Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges, 83 (2008) (noting that the QP “may well be the most important part of [an attorney’s] brief”). Another former Justice stated that often times his decision to grant certiorari was made solely upon review of the QP. William J. Brennan, The National Court of Appeals: Another Dissent, 40 U. Chi. L. Rev. 473 (1973). These sources should give counsel pause before filing a rushed QP.
Notes on Formulating Your Question(s)
Regarding grammatical formulation, the question should be written in one of two ways: First, it may ask a direct question, ending with a question mark. SCP at 454. Second, it may ask an indirect question, beginning with the word “whether” and ending in a period. Id. At Cockle, we often see indirect questions (which are really assertions) that end with question marks. This is incorrect as a grammatical matter. For those who prefer to follow the format used by the Solicitor General’s office, the SG has used the statement form with the word “whether” approximately 94% of the time. Brady Cooper, et al., Grammatical and Structural Choices in Issue Framing: A Quantitative Analysis of “Questions Presented” from a Half Century of Supreme Court Briefs, 29 Am. J. Trial Advoc. 327, 335 (Fall 2015).
Often times the QP page is pigeonholed as the place where argument is not welcome. That is incorrect. While Rule 14.1(a) indicates that the QP should not be “argumentative,” the question can, and indeed should, advocate a particular position favorable to your client. See Carole C. Berry, Effective Appellate Advocacy: Brief Writing and Oral Argument, 91, 93 (3d ed. West 2003) (“Subtle wording that suggests a favorable outcome is the hallmark of a good question.”). The best way of formulating a question calling for a particular result is to frame a QP calling for a yes or no answer, since “[q]uestions that use an either-or or an open-ended format are weaker because they appear equivocal . . . .” Fischer, Judith, D., Got Issues? An Empirical Study about Framing Them.
Perhaps the biggest mistake Cockle sees is when a petitioner crams too much information into the QP. The result is often a cumbersome 75-word question that “no mortal reader could wade through.” Making Your Case at 87 (Scalia, J.). To be sure, there are times (especially in highly-technical statutory questions) where some set-up to the question is desirable.
Where the QP is long—i.e., over 60 words, convoluted and/or grammatically awkward—we usually suggest that the attorney place an introductory paragraph before the question and then set a pared-down version of the question apart from the intro paragraph. SCP at 454-55. There has been a movement in the legal community towards this practice. Cooper at 338 (“Over the past twenty-five years, litigants have increased their use of introductory statements.”). Besides clarity, the introductory paragraph comes with an additional benefit: it allows the petitioner to highlight the cert-worthiness of the question, such as whether the court below created a circuit conflict or that the question is of national import.