> For the complete documentation index, see [llms.txt](https://jennyrice.gitbook.io/wrd-418-legal-writing/llms.txt). Markdown versions of documentation pages are available by appending `.md` to page URLs; this page is available as [Markdown](https://jennyrice.gitbook.io/wrd-418-legal-writing/chapter-6-writing-objective-legal-analyses/issue-statements-questions-presented.md).

# Issue Statements/Questions Presented

When drafting legal memoranda or briefs, it is essential to distinguish between **Issue Statements** and **Questions Presented**. While both identify the legal issue, they serve different purposes and are written differently.

* **Issue Statements**: Objectively identify the legal issue in a neutral, informative way. They are used in objective memoranda to give readers the information needed to resolve a question.
* **Questions Presented**: Persuasively frame the issue before a court, often suggesting the conclusion the writer advocates.

Both Issue Statements and Questions Presented include three elements:

1. **The Law** – a brief reference to the governing legal rule.
2. **The Question** – the specific legal issue to be addressed.
3. **Legally Significant Facts** – the facts necessary to understand and resolve the issue.

The difference lies in **how** these elements are stated. In an Issue Statement, each part is neutral and objective. In a Question Presented, each part is written persuasively to suggest a favorable answer.

***

### Common Formulas for Drafting Questions

There are two standard formats for drafting Questions Presented:

#### 1. “Under…does…when” Formula

**Structure:**\
\&#xNAN;*Under (law with brief explanation) does (issue) when (legally significant facts)?*

**Objective Issue Statement Example:**

> Under New York State’s Freedom of Information Law, which provides that government agencies shall make available for public inspection and copying all records, except those they may deny access to, must the government release the video of an interaction between a prisoner and some guards?

**Persuasive Question Presented Example:**

> Under New York State’s Freedom of Information Law, whose purpose is to provide government transparency, may the State or any of its subdivisions or agencies suppress a videotape recording containing scenes of jail guards beating a handcuffed detainee?

***

#### 2. “Whether…under…when” Formula

**Structure:**\
\&#xNAN;*Whether (issue) under (law with brief explanation) when (key facts)?*

**Example Using the Same Facts:**

> Whether the State or any of its subdivisions or agencies may suppress a videotape recording under New York State’s Freedom of Information Law, whose purpose is to provide government transparency, when the recording contains scenes of jail guards beating a handcuffed detainee?

***

### Handling Multiple Questions or Sub-Issues

Sometimes, an analysis may involve more than one legal question:

**Separate Questions Example:**

1. Whether the UKPD acted lawfully under the Fourth Amendment when officers asked to enter a room and were granted permission by an occupant?
2. Whether the UKPD had probable cause for a room search when an RA smelled marijuana smoke coming from the dorm room and the occupant did not answer the RA’s knocks?

Alternatively, one question may contain **sub-issues**:

**Example:**

> Under the Landlord and Tenant Act, did the landlord properly terminate the plaintiff’s lease when:
>
> * She gave notice of termination orally rather than in writing,
> * She told the tenant she was terminating the lease because the rent was too low, and
> * She gave the tenant only 10 days to vacate the premises?

***

### Example: Contract Dispute

A client alleges she entered into a contract to purchase dresses, and the dressmaker installed defective zippers. The dressmaker claims there was no valid contract and that the zippers were not defective.

There are two issues:

1. **Issue One**: Whether a valid contract exists. (If there is no contract, there can be no breach.)
2. **Issue Two**: Whether the contract was breached.

***

### Avoiding Substituting Legal Conclusions for Facts

A common mistake is to insert legal conclusions into a Question Presented rather than stating the facts. This is ineffective because it "answers" the question instead of posing it for the court.

**Incorrect Example:**

> Under New York State’s Freedom of Information Law, whose purpose is to provide government transparency, may the State or any of its subdivisions or agencies suppress a videotape recording when its disclosure would provide government transparency?

Notice that the conclusion (“would provide government transparency”) **begs the question**, making the issue obvious. The facts, not the legal conclusion, should frame the question.

**Corrected Examples:**

1. Under Michigan law, can Mr. Smith be convicted of armed robbery when he displayed a toy gun during the course of a robbery?
2. Under Michigan law, can Mr. Smith be convicted of armed robbery when he displayed a toy gun while taking items from a store without paying for them?

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