730135_11786430As we have discussed in our previous blog posts (here & here), the Question Presented is the most important part of your brief because it is the first item that the Justices’ law clerks view.  In this blog post I would like to exemplify the qualities of a well-written Question Presented by highlighting the Question Presented from the recently-filed cert petition in 14-280, Montgomery v. Louisiana:

Henry Montgomery has been incarcerated since 1963.  Montgomery is serving a mandatory life sentence for a murder he committed just 11 days after he turned seventeen years of age.

In light of Miller v. Alabama, 567 U.S. ___, 132 S.Ct. 2455, 83 L.Ed.2d 407 (2012), which holds that mandatory sentencing schemes “requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole”…violate the Eighth Amendment’s ban on cruel and unusual punishment, Montgomery filed a state district court motion to correct his illegal sentence.  The trial court denied Montgomery’s motion, and on direct writ application, the Louisiana Supreme Court denied Montgomery’s application, citing State v. Tate, 2012-2763 (La. 11/5/13), cert. denied, 134 S.Ct. 2663, 189 L.Ed.2d 214 (2014), which held that Miller is not retroactive on collateral review to those incarcerated in Louisiana.

The question thus presented here is whether Miller adopts a new substantive rule that applies retroactively on collateral review to people condemned as juveniles to die in prison?

What makes this question presented special?

  • Brevity – The information fits on one page, which allows the reader to absorb the question’s content at a glance, while also adhering to the Court’s Rule 14.1(a) to avoid “unnecessary detail.”
  • Yes or No – The question calls for a yes or no answer.  Open-ended questions should be avoided because the Court is not there to explain why a lower court decided the way it did.  Instead, the Court is there to correct an inconsistency in the law, and your Question Presented should steer the Court towards that direction.
  • Introductory Paragraph – Sometimes a legal issue is just too complex to boil down to a one-sentence question.  It is becoming increasingly common to use one or more introductory paragraphs to give the reader the proper context within which to consider the question.  Scalia has even endorsed phrasing the question in this way.  See Scalia & Garner, Making Your Case:  The Art of Persuading Judges, at 87-88 (2002).
  • What Law is Involved – This question does a nice job of summarizing the case law and the constitutional amendment at issue in this case.
  • Advocacy – The question uses persuasive language suggesting the Court ultimately resolve the question in favor of the Petitioner, while avoiding an overly argumentative tone.

At Cockle Legal Briefs, we will review your Question(s) Presented to make sure you are presenting your legal issue to the Court in an acceptable format.  No other Supreme Court brief printer offers this service.