BRIEFS FOR THE BRIEF WRITER: Get over your issues

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Drafting a Statement of the Issues is not my favorite part of preparing a Wisconsin Court of Appeals brief or any brief, for that matter.

A Statement of the Issues is not inherently snappy, like a good introduction or conclusion. And it’s almost impossible to make one sound lyrical, as you can with a well-flowing argument. The fact that I have to write a Statement of the Issues at all throws me back to the mind-numbing days of grade-school sentence diagramming.

That being said, a well-written Statement of the Issues can be one of the most convincing parts of an appellate brief. It is, therefore, more than something to “draft” and forget. It encapsulates your client’s position on an issue in a limited number of words. In many ways, it is as important as the argument section. It is also one of the first things an appellate judge or clerk sees when he or she opens your brief.

Section 809.19(1)(b), Wis. Stats. requires only that an appellant’s brief contain “(a) statement of the issues presented for review and how the trial court decided them.” A respondent’s brief need not even include one, although I draft Statements for whichever party I’m representing. (Compulsive? Masochistic? You be the judge).

Many Statements of the Issues we’ve all seen, and probably all drafted, are simple and easy to write:

• “Did the trial court err in entering judgment against the appellant?”
• “Did the trial court err in its maintenance award?”
• “Did the trial court err in using respondent’s jury instruction at trial?”

The problem is that these statements don’t give the appellate court any real information about (1) what specific ruling is being challenged; (2) why that ruling was wrong; and (3) what power the appellate court has to fix the trial court’s mistake (standards of review). Other than the dispute’s general nature (family law, contract breach, etc.), the judge or clerk is no more clued in to your position after reading the statement, than he or she was before.

The difficulty, of course, is crafting a statement that gives the appellate court useful information, is “slanted” in your client’s favor, but is not a half- page full of clauses and commas.

Specificity is good, but readability is key.

Say, for example, that the trial court ruled that your client breached his employment contract’s “best efforts” clause by leaving a couple of hours early on the last afternoon of a trade show. As appropriate to the facts, a first draft of a statement as to this issue might be:

“Did the trial court err as a matter of law, in ruling that Mr. X failed to use his ‘best efforts’ under his employment contract with Company Y, where the court misconstrued the contract’s ‘best efforts’ provision to prohibit an incidental, inconsequential and harmless two-hour trade show absence?”

This issue identifies the challenged ruling, states why it was wrong and triggers the standard of review (de novo for questions of law, including construction of contracts) to empower the court to reverse.

Many practitioners write their Statement of the Issues when they begin a brief, but I prefer to wait until after I write my argument section. That way, factual and legal nuances I might want to include are fresh in my mind. I do the same with introductions. Use whichever process works for you.

Statements of the Issues: Hate them if you will, but draft them with care.