Persuasively Framing Issues

I recently thought long and hard about how to frame a legal issue of first impression for a bench memorandum. The way the issue was framed would not necessarily affect the outcome of the particular case before the court. But the case–and the opinion–will lay the foundation for the next case in one way or another, and neither way is inherent in the existing precedent.  Although the decision is ultimately not mine, how the issue was framed at the initial stage could color how it is perceived by the judges and the nuances of the resulting opinion.

For me, this exercise was a reminder of the importance of carefully framing the issue in persuasive legal writing. It is the reader’s first impression of how compelling the argument is and the legitimacy of the writer. Framing the issue is relevant beyond the ”Issues Presented” section of a brief or memo and the way it is done should be consistent throughout. The issue is the point of the piece and will be repeated, each time, hopefully, with an additional reason why the reader should be convinced of the argument. 

Think of framing the issue as constructing a telescope through which the entire argument will be viewed and positioning the telescope in the direction of where you want the reader to end up.  Like the lens of the telescope, the issue should be clear.  Be accurate, deliberate and concise in your word choice. Negatives should be avoided when possible. For example, “the right to be free from employment discrimination is well-established” is better than “the right to not be discriminated against in employment is well-established.”  Think about the connotations of each word and if there is another word that makes your argument more appealing, perhaps because your position makes common sense when framed a particular way.  

A well-framed issue can also help keep the telescope pointed in the direction you want to reader to go. If there are compelling facts that a reader might empathize with, those can be included. For example “the BIA violated petitioner’s due process rights by failing to consider that he is a single father of four and the sole wage earner in his household” is better than “the BIA violated petitioner’s due process rights by not granting him a waiver.”  The issue should also be framed to make the court comfortable with the broader implications of ruling in your favor. Take the recent oral argument in the Supreme Court (a nice summary is here) as an example, where the many of the Justices expressed concern that GPS tracking could be used on members of the Court if they ruled in favor of the Government. We will see where the discomfort leads them, but it shows that emotion is involved in judicial decision-making, regardless of how much it is repressed. The way an issue is framed can manipulate that emotion in favor of the argument.

Properly framing the issue has the added bonus of assisting with the writing process. By spending some time to think about the issue and its nuances, the writer becomes more familiar with the argument before significant writing has begun. A well-articulated issue also helps focus the writer and assist with large-scale organization. It can serve as a guidepost as the argument unfolds to ensure that each piece relates to the others. That said, the specific articulation of the issue might evolve as the argument develops.

Finally, it is rare that legal writing has much relevance to real life, but, as a nod to the upcoming Thanksgiving holiday when many in United States reflect on what we have to be thankful for, I will mention that framing the issue is easily applied to life. Even life’s trials, if framed differently, can be positives for which to be grateful. Some small examples– frustrated by your commute home from work? Be grateful you have work and a home. Tired of being tired? Be grateful of how productive you are. If it is natural for you to view life’s negatives as positives, tap into that skill when framing legal issues.