Throughout my legal career, I set specific writing goals and have been relatively successful in achieving them. For example, my research and writing memorandums allowed me to be invited to take scholarly writing. I then received an “A” in scholarly writing, and was interviewed and served as an associate editor for law review. My last law school writing class was advanced writing, where I received the book award or highest grade in the course.
At least part of the reason why I successfully achieved my goals is owed to Bryan Garner’s proposal of the “Deep Issue.” I spend a considerable amount of time framing the issues for each position that I advocate. Justice Scalia and Bryan Garner in a recent book described the question presented as possibly “the most important part of your brief.”[1] Because in framing the issue, you as the writer are guiding the reader to the conclusion that you want the reader to reach.
In being part of the legal profession it is human nature to want to flip open any assignment that you are reading and know exactly what the entire case is about in two minutes.[2] So, I thought for certain assignments I could attempt to give the reader the entire case in a clear and easily understandable way.
As one professor of mine suggested, I read up on Bryan Garner’s deep issue method. Interestingly, he has various rules as to how the writer could present his questions to the reader. Three of the rules are as follows: (1) Phrase your issues in separate sentences, (2) do not start with whether or any other interrogative word, and (3) limit your issues to 75 words apiece.[3] In giving Garner’s method a shot, I was pleased with the outcome. Two examples of the deep issue that I used in law school are:
I. Facial discrimination includes government laws that single out and treat any individual with a disability different from everyone else. The City of Pensacola originated an ordinance that specifically singles out drug users and prevents them from living within 2,500 feet of a school. Does FHA or ADA protection afford a higher level of scrutiny than a rational basis review?
II. Michigan’s Clean Indoor Air Act prohibits smoking in all food establishments and public places. Knapp Valley, a private golf club, often rents out a pool house to its club members. During private parties, food is served from the main club house to the pool house because the pool house has no kitchen. Also members from the general public tend to be invited. Does the Michigan smoking ban apply to Knapp Valley’s pool house?
The first example contains only 59 words and is framed in three sentences instead of one.[4] Notice that the word whether is not at the beginning, which was probably the hardest part for me in the beginning. Otherwise, I could not put a one sentence issue in an article without any context, and have a seasoned legal reader understand what a case is generally about. And that is the beauty of the deep issue, the reader will want to read the issue again because their eyes are not glazed over from the first read.
[1] Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 83 (2008).
[2] Id. at p. 88 (explaining that the deep issue allows a reader unfamiliar with the area of law to easily understand the issues, which satisfies a seasoned legal readers need to quickly find out what the case is about).
[3] Bryan A. Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts 74-84 (2d Ed. 2004).
[4] Note that in these two examples the individuals and companies are fictional.
Back To Criminal Law