LEGAL TECHNIQUE

Framing the Issues

 
Tell me about our legal issues.
And use small words. Lisa Kleypas
 
1.         Meaning of issue
 
            Issue is the point of dispute, the problem or question, on which the
legal analyst takes a position.
 
            To repeat, the general problem in any legal dispute involves the
application of the law to the facts. This general problem may branch out to
specific questions in three areas:
 
(a)        Pure question of law- the issue is limited to finding out what
law is applicable when the facts of the problem are not disputed.
 
(b)       Pure question of fact – this is the opposite of the first, and
here there is no dispute as to the applicable law, and the issue is confined
to determining what the facts of the problem are.
 
(c)        Mixed questions of law and fact – the issues extend to what
the applicable law is and what the facts are to which the law will apply.
 
2.         Function and necessity of issues
 
Issues are the terms of reference of a legal dispute, the lines of
battle, or the points over which the opposing sides cross verbal swords.
They form part of the rules of engagement or fair play in a controversy.
 
Issue statements guide the reader in identifying the contested
points, and in following the arguments put forth by the opposing sides on
each point. 
 
It is required that an appellant’s brief contain a clear and concise
statement of the issues of fact or law to be submitted to the court for its
judgment. [1]
 
From the court’s viewpoint, the most important purpose of the

1
statement of issues is to acquaint the court at the outset with the general
outlines of the case. It should be so devised as to impart on first reading
the “individual flavor” of the case. [2]
 
3.         Identifying the issues in a legal problem
 
            The issue arises when a “rule of law” comes in contact with the facts
in a given situation. When a legal writer is presented with the facts, the
process of legal reasoning begins by determining the “rule of law” that
applies to the facts. To reiterate, the “rule of law” is the formula for
making a conclusion, and contains a set of elements, which is collectively
called a test. [3]
 
Once the rule is determined, the next step is to determine which
facts satisfy or do not satisfy the test. It is in this part that the issue is
created and identified.
 
After the issue has been identified, what follows next is the
exchange of propositions by the opposing sides, to demonstrate from the
facts the presence or the absence of the elements of the rule.   
 
EXAMPLE: In a prosecution for murder, the elements
of the crime of murder are tested from the facts, i.e., the
prosecution must demonstrate those facts that will
prove the presence of the elements, while the defense
must demonstrate those facts that will disprove the
presence of the elements, or demonstrate those facts
that will lead to an exemption from or mitigation of
liability.
 
4.         Framing the issue statement
 
The issue statement has three elements: Question, Legal Rule, and
Facts. It is always framed in the form of a question and contains a
statement of the governing legal rule and the relevant facts to which the
rule will apply.
 
(QUESTION FORM) Whether the sheriff acted in
excess of his lawful authority (LEGAL RULE) when he
conducted the demolition of the houses based on a writ
of demolition that was issued without prior notice to

2
 the residents (FACTS).
 
 5.        Question form of the issue statement
           
The common form in our jurisdiction is to start the issue with
either “Whether” or Whether or not.” Note that, strictly speaking, the
sentence construction that starts with these words is not a complete
sentence.
 
Generally, the question form calls for a “yes” or “no” answer.  
 
6.         Present the issue in the law-then-facts format
 
            To create a context in which the reader can understand and evaluate
the facts, it’s generally best to put the law at the beginning of the issue
statement. [4]
 
EXAMPLE 1 Whether the sheriff acted in excess of his
lawful authority in executing the money judgment
(LEGAL RULE)when, without a break-open order and
over the judgment debtor’s objections, he destroyed
the padlocks in the debtor’s appliance store and seized
the stocks inside (FACTS).
 
EXAMPLE 2 Whether the lower court gravely abused
its discretion amounting to lack or excess of
jurisdiction (LEGAL RULE) when it issued a writ of
demolition without prior notice to the defendants and
based only upon an ex-parte motion filed by the
plaintiff (FACTS).
 
7.         Where to place the issue statement
 
            Issues are presented together in the statement portion of the legal
document. A memorandum or brief submitted in court locates the issue
statement between the statement of facts and the discussion portion.
 
8.         State only the main issues
           
When a case is complicated with numerous issues, a good
suggestion is to identify the main issues and focus on them in the issues

3
portion of the legal document. Whether the sub-issues should be included
in the issues portion or stated in the argument portion is the legal writer’s
call.
 
EXAMPLE OF MAIN ISSUE Whether the Court a quo
gravely abused its discretion amounting to lack or
excess of jurisdiction when it ordered the execution of
the compromise judgment in the case in which
petitioner company, alleged to be a subsidiary of the
defendant, was not impleaded as a party.
 
EXAMPLES OF SUB-ISSUES 1. Whether petitioner is
deemed a subsidiary company of the defendant. 2.
Whether petitioner, assuming that it is a subsidiary of
the defendant, is bound by the compromise agreement
of which it is not a signatory. 3. Whether the
compromise judgment can be executed against the
petitioner even if it has not been impleaded as a
party.  
           
9.         Avoid stating obvious issues   
 
You don’t have to state issues that are implicit or obvious from the
nature of the proceeding itself. Such issues only beg the question.
 
EXAMPLES OF OBVIOUS ISSUES 1. Whether the
conviction of the accused is proper when the
prosecution has failed to prove his guilt beyond
reasonable doubt. 2. Whether the plaintiff has proved
its case with preponderant evidence. 3. Whether the
petition should be given due course.
 
You will note that in the examples, the issue statements involve
questions of fact and yet do not have the facts component.
 
10.       Number or categorize the issues
 
            To guide the reader, mark the issues with number or place related
issues in a category.  
 
11.       Jurisdictional, procedural or threshold issues are stated ahead of

4
the others
 
            Questions that bear upon the jurisdiction of the court or body to
resolve the case or any matter, or the propriety of procedure taken, or that
must be resolved as a precondition for resolving the other issues, must be
placed at the top of the issue list.   
 
12.       Keep the issue statement clear, accurate, brief and simple
 
Clarity, accuracy, brevity and simplicity are virtues to be practiced
when formulating issue statements as when writing other parts of a legal
document.  
 
An issue statement must be clear enough as to be readily
comprehensible on first reading. [5]
 
The issue statement must be drafted in such way that the
opposing party will accept is as accurate. [6] Fairness and honesty dictate
that the legal analyst avoid twisting the law or the facts in the statement of
issues.
 
All unnecessary detail must be removed, and the essence of the
case must be reduced to capsular form if the statement is to serve its
purpose. A capsule, if it is to be swallowed easily, must be small. [7]
 
13.       Delete non-essential adverbs and adjectives
           
Putting too many adverbs and adjectives is a noticeable bad habit
in writing issue statements.
 
14.       Make the issue statement persuasive
 
            The issue statement gives you the chance to work on persuading the
reader like the decision-maker to take your side in favorable light.
 
            Depending on which side you are, the issues should be written in
such a way that it would call for an answer that favors your side.
 
            The legal analyst may frame the issues in a manner “that is
insidiously persuasive, subtly persuading without seeming to do so.” [8]
 

5
 

[1]               Revised Rules of Court, Rule 44, Section 13

[2]               Frank E. Cooper, Stating the Issue in Appellate Briefs; Juan F.
Rivera, The Great Power at the Bar and Bench, 764 (1972)

[3]               Please see Study Notes 14 (Introduction to Legal Reasoning)

[4]               Alan L. Dworsky, The Little Book on Legal Writing, 118 (1992)

[5]               Frank E. Cooper, op cit., 766

[6]               Id., 770

[7]               Id. 766

[8]               Id. 772