“You can tell whether a man is clever by his answers. You can tell whether a man is wise by his questions.”
Naguib Mahfouz (Winner of Nobel Prize for Literature in 1988)
If the argument section is the engine that drives the cert petition car, the Questions Presented (“QP”) is the body governing how the engine is framed and the paint job creating that vital first impression. Send a rusty and dented car to the Court, and the Clerk writing the cert pool memo may move on to a flashier ride. Nor will the Justices be impressed. The goal of this post is meant to turn your scratched and marred Pinto-looking QP into, at very least, a Prius!
There may be no more daunting task in all Supreme Court practice than distilling a 9,000-word, or less, cert petition down to one or two QPs. Indeed, this task often results in attorneys asking more questions than writing them. The 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), and few attorneys file cert petitions with frequency. But 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.
First, I will explain the purpose of the QP, and why it is important. Second, I will offer suggestions on how to formulate QP’s from experts as well as add a few of my own. Third, I will examine a few questions from the Supreme Court’s 2009 Term, both good and bad. By the end of this post, you should have a better idea on how to formulate the QP that will best fit your cert petition.
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 . . .
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 535-536. It also conserves the Court’s resources by narrowing the legal issues the Court can select in a given cert petition. 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, QP’s which fail from the outset to illuminate the case—and its possible certworthiness—lose that all-important chance at a favorable first impression.
First impressions may not be the only thing at stake. Due to its overall purpose within the Court’s certiorari screening process, the preeminent guide on the Supreme Court notes that the QP page is one of “[t]he most important page in the entire [petition for a writ of certiorari] document.” Eugene Gressman, et al., Supreme Court Practice, at 452 (9th ed. 2007) (“SCP, __.”). One Supreme Court Justice has explicitly endorsed this sentiment. See, e.g., Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges, at 83 (2008) (“Making Your Case,__”) (noting that 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.
Before I list some suggestions from the experts (as well as few tips of my own), it should be noted that in the end issues still drive the Court’s docket. Every year I see petitions with poorly, if not terribly, worded QPs that are ultimately granted. These grants suggest that the Court will sometimes overlook an improperly formulated question. But the fact that the Court grants a majority of petitions from the expert Supreme Court bar (who file extraordinarily clear and concise QP’s), also suggests that a properly formulated QP can make a difference in some cases. With that preface, here are a few suggestions when writing a QP.
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. See, this link. 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, 2005) (“Cooper, __”).
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. Allowing an initial opportunity for persuasion to slip away is akin to standing on rather than stealing a base because the catcher should have a good arm. Sure it’s safe, but no Hall of Famer will you make. This is not to say that the tone of your QP should be worded in such a one-sided way as to make no reasonable person answer the question differently than your desired result. That is not a wise strategy. See, Carole C. Berry, Effective Appellate Advocacy: Brief Writing and Oral Argument, at 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, at pg. 22 of 27.
These three examples help show the various argumentative tones a question can take.
Should triple-hearsay evidence be admitted and considered by district courts when sentencing a defendant under the Federal Sentencing Guidelines?
This example is straightforwardly objective. It does not hint at the correct answer. Such questions are acceptable. But check out these questions:
Did the district court err by admitting and then considering triple-hearsay evidence that substantially increased petitioner’s sentence under the Federal Sentencing Guidelines?
Did the district court properly exercise its wide sentencing discretion in admitting triple-hearsay evidence at the sentencing hearing and using that information to construct a sentence within the range set by the Federal Sentencing Guidelines?
The following two examples state basically the same legal question as the first example, but they lean you toward the favorable answer. Such questions are preferable, because it places your case in the proper frame.
Perhaps the biggest mistake I see is when a petitioner crams too much information into the QP, as though the Court requires every detail and subsidiary issue to be contained there. 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. But there is no rule stating that the QP must be limited to one sentence. Where the QP is long—i.e., over 60 words, convoluted and/or grammatically awkward—I usually suggest at Cockle 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 certworthiness of the question, such as whether the court below created a circuit conflict or that the question is of national import. Another suggestion to prevent a QP from becoming convoluted is to use a form of syllogism where the question is asked in two or three sentences—the so-called “deep issue” statement. Bryan A. Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts 80, 86-87 n.45 (2d ed., Oxford U. Press 2004). Justice Scalia has endorsed the phrasing of the questions in this format. Making Your Case, at 87-88.
One mistake I see on occasion is where a petitioner states that the question is whether the lower court created a conflict. While this is a reason for granting cert, it is not, however, a substantive legal issue which the Court must decide. SCP, at 462. As such, the QP should not be framed in this manner. But do not mistake me. If your cert petition presents a circuit conflict, I think you should bring that fact to the Court’s attention. A circuit conflict is by far the most prevalent reason why the Court grants cert. Highlighting that fact front and center can only improve your chances at garnering some attention, especially amongst the law clerks who will be writing the cert pool memo that decides your fate.
The best suggestion I have ever found for formulating a Question Presented comes from the late Mr. Eugene Gressman:
On the assumption that a meaningful ruling by the Court is the flip side of a meaningful question presented to it, a suggestion has been made that one way to test whether a question meets the above criteria is to turn the question into an affirmative ruling by the Court, preceded by the words “We therefore hold that***.” Then ask yourself whether such a holding makes an intelligent and meaningful precedent, having an impact beyond the immediate parochial concerns of your client. If so, the question is in proper form.
For example, suppose a question is drafted in these terms: “We therefore hold that we should resolve the circuit conflict as to the proper construction of the ‘public performance’ right in 106(4) of the Copyright Act.” Obviously, the Court would never make such a ruling. Thus, the question itself is faulty.
Gressman, E., Anatomy of a Petition for Certiorari, Prac. Litig., Vol. 2, No. 3, 61, 66-67 (May, 1991).
Now let’s look at the use of these strategies in some of my favorite questions from the 2009 Supreme Court Term. Here is a question from the Stanford duo of Pam Karlan and Jeff Fisher:
Whether a district court may enter a restitution order beyond the time limit prescribed in 18 U.S.C. § 3664(d)(5).
The question uses the statement format, ends with a period, and incorporates the relevant statute. There is no ambiguity to the question and, reading it, one would inherently think that a district court cannot impose an order beyond the time established by statute—i.e., they framed this question in a way that produces a desired “no.” I see very few questions that are this simple and clear.
This question from Even Chessler is another example of simplicity in design:
Did the Third Circuit err in holding, in accord with the Ninth Circuit but in contrast to nine other Courts of Appeals, that under the “inquiry notice” standard applicable to federal securities fraud claims, the statute of limitations does not begin to run until an investor receives evidence of scienter without the benefit of any investigation?
The question is easy to understand and it puts the Court on notice that the issue has caused a large circuit split, which includes the court whose judgment is at issue alongside the notoriously-reversed Ninth Circuit. That is a clever strategy.
Statutory questions are prime candidates for using the introductory paragraph, because you need to convey both the statutory question and the context, which tends to create too many sub-clauses within a single sentence question. In the question below, Mark Stancil makes good use of the intro paragraph:
The Speedy Trial Act, 18 U.S.C. § 3161 et seq., requires that a criminal defendant be tried within 70 days of indictment or the defendant’s first appearance in court, whichever is later. In calculating the 70-day period, 18 U.S.C. § 3161(h)(1) automatically excludes “delay resulting from other proceedings concerning the defendant, including but not limited to * * * (D) delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of such motion.” (emphasis added). The question presented here is:
Whether time granted to prepare pretrial motions is excludable under § 3161(h)(1).
As the Eighth Circuit explicitly acknowledged below, this question has divided the courts of appeals. The Fourth and Sixth Circuits have answered it in the negative; the Eighth Circuit and seven other circuits have answered it in the affirmative.
The set up explains the Speedy Trial Act’s general rule and then the more specific statutory language that is subject of the dispute. This allows the actual question to be free of statutory minutia that would weigh it down. Plus, Stancil emphasizes the circuit conflict through the creative use of a standalone paragraph below the question.
Brian Garner’s “deep issue” format made its way into the Court’s certiorari process during the 2009 Term. Charles Wirken’s petition used the format to great effect in United Student Aid Funds.
1. Student loans are statutorily non-dischargeable in bankruptcy unless repayment would cause the debtor an “undue hardship.” Debtor failed to prove undue hardship in an adversary proceeding as required by the Bankruptcy Rules, and instead, merely declared a discharge in his Chapter 13 plan. Are the orders confirming the plan and discharging debtor void?
2. Bankruptcy Rules permit discharge of a student loan only through an adversary proceeding, commenced by filing a complaint and serving it and a summons on an appropriate agent of the creditor. Instead, debtor merely included a declaration of discharge in his Chapter 13 plan and mailed it to creditor’s post office box. Does such procedure meet the rigorous demands of due process and entitle the resulting orders to respect under principles of res judicata?
I must admit that when I read Scalia and Garner’s book, I was skeptical that anyone would use their avant garde QP format. But I stand corrected. What is striking about this method of QP formulation is the level of clarity that it produces. A Justice or Clerk could flip open the first page of this petition and know exactly what the case is about. Any method producing such an effect should not be dismissed.
Now we shall see my two favorite QPs of the 2009 Term. First is the runner-up. Now some of you may say that I am biased when it comes to Seth Waxman, given the role he has played in my life. My answer to that is, of course, but that fact has nothing to do with appreciating the QP in Stolt-Nielsen:
In Green Tree Financial Corp. v. Bazzle, 539 U.S. 444 (2003), this Court granted certiorari to decide a question that had divided the lower courts: whether the Federal Arbitration Act permits the imposition of class arbitration when the parties’ agreement is silent regarding class arbitration. The Court was unable to reach that question, however, because a plurality concluded that the arbitrator first needed to address whether the agreement there was in fact “silent.” That threshold obstacle is not present in this case, and the question presented here–which continues to divide the lower courts–is the same one presented in Bazzle:
Whether imposing class arbitration on parties whose arbitration clauses are silent on that issue is consistent with the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq.
I tend to prefer QPs that thread the certworthiness of the petition into the QP, and Seth’s QP did just that. Seth explained not just the presence of an ongoing circuit conflict, but also how his petition had to be worthy of the Court’s review, because the Court had granted a previous petition presenting the same issue and was unable to reach it. He further explained how the impediment to review in the previous case was not present in his. In other words, he summarized all of his certworthy arguments into his intro paragraph without doing so overtly.
My favorite QP comes from Miguel Estrada in the case of Black v. United States. This was one of the three honest service cases that the Court granted in the 2009 Term. The difficulty with this petition was that the honest services statute had a long history with both the Court and Congress. Without including that history the questions would have lost valuable context. The questions are below:
This Court held in McNally v. United States, 483 U.S. 350 (1987), a public corruption case, that the mail fraud statute could not be used to prosecute schemes to deprive the citizenry of the intangible right to good government. Congress responded in 1988 by enacting 18 U.S.C. § 1346, which expands the definition of a “scheme or artifice to defraud” under the mail and wire fraud statutes to encompass schemes that “deprive another of the intangible right of honest services.”
Twenty years later, the courts of appeals are hopelessly divided on the application of Section 1346 to purely private conduct. In this case, the Seventh Circuit disagreed with at least five other circuits and held that Section 1346 may be applied in a purely private setting irrespective of whether the defendant’s conduct risked any foreseeable economic harm to the putative victim. In the alternative, the Seventh Circuit ruled that the defendants forfeited their objection to the improper instructions by opposing the government’s bid to have the jury return a “special verdict,” a procedure not contemplated by the criminal rules and universally disfavored by other circuits as prejudicial to a defendant’s Sixth Amendment rights.
1. Whether 18 U.S.C. § 1346 applies to the conduct of a private individual whose alleged scheme to defraud did not contemplate economic or other property harm to the private party to whom honest services were owed.
2. Whether a court of appeals may avoid review of prejudicial instructional error by retroactively imposing an onerous preservation requirement not found in the federal rules.
This was a horribly complex setup that Mr. Estrada pulled off with aplomb. The first paragraph explains how the Court ruled on the honest services statute, how Congress passed a new statute overruling that decision, and how the current statutory language expands the previous statute. What is unusual is that the whole history and current statutory language is broken down over the course of only two sentences. While that is impressive enough, my favorite part of the QP is how it labels the court of appeals as “hopelessly divided” on the application of the statute to “purely private conduct.” That statement goes to the heart of the Court’s certiorari review—a case where the circuit conflict is both intolerable and important. Plus, the intro paragraph deals with the tricky alternative holding issue in a way that makes the answer to question two appear academic.
These were the great examples, but here are some not so great. In this question, which I must note, the Court actually granted—the formatting is so bad that although the QP is not terribly-phrased, the reader is completely distracted. Whatever format you use for a QP, do not underline it and place it in initial caps. This question—it too was granted—suffers from several errors, including that it is vague, asks two questions inside of one, and is not “expressed concisely in relation to the circumstances of the case.” Rule 14.1(a). And since it lists the parties on the same page, it violates the rule that “no other information may appear” on the QP page. Rule 14.1(a).
Okay, this post has become way too long. Chime in with your favorite QPs from the 2009 or any other Supreme Court term.