PROFESSIONAL PRACTICE II

LAW4511

ISSUE IDENTIFICATION AND DRAFTING

STATEMENTS OF ISSUE IN LEGAL PROBLEMS

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 You Think You Have Issues?
The Art of Framing Issues in Legal Writing

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 INTRODUCTION –
Legal Issue and Legal Analysis
• The crucial first step of the legal analysis process -
identifying the ISSUE/S or “spotting the issue/s” or
the QUESTION/S PRESENTED by the fact situation.
• It is the foundation and key to effective legal
analysis.
• Reasons: It informs the reader of the issues before
she begins reading the analysis or argument.
• Additionally, in trial motions and appellate briefs,
the question presented encourages your reader to
accept your position early on.
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Hence:

• You must identify the issue/problem before it

can be solved.
• A misidentified issue can result not only in
wasted time, but also in malpractice.
• But beware - the question presented is also
often one of the most difficult sections to
write.

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 SOME DEFINITIONS
What is an issue?

• An issue can be defined as the point/s of controversy in a given fact

pattern which need to be resolved by the application of legal concepts
and procedures (and their attendant rules, regulations and principles).

• An "issue" is a question about how law applies to a set of

facts.

• Issues are the essence of a legal controversy.

• In broadest sense - the issue is a question—the legal

question raised by the specific facts of a dispute. 5
 WHEN ISSUE IS RELEVANT
• Issue identification is used in
writing,
o case summary or case brief;
o legal research report; and
o memo of advice or opinion
(internal memo);
o submission or legal brief.
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 FUNCTIONS of ISSUE
o Question presented section, say in internal memo, sets out the
questions you will ultimately answer.
o These questions link your research to your discussion and
conclusion.
o Questions set the narrow scope of the memo both by explaining to
the reader the narrow legal issues that you will discuss, and by
omission, telling the reader what you will not discuss.
o Statement of issues should focus the reader’s attention precisely
from the beginning so that she/he will not waste time or attention
considering related, perhaps interesting, but for this problem,
unnecessary issues.
o Statement of issues section also serves as a basic organizational
tool for the reader.
o To achieve these functions, the writer must choose the subject
matter of the questions, assign their relationship, and draft them
with care.
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 A Quote
“Framing issues is among the most important part of
writing briefs and inter- or intra-office memorandums.
Issues create the boundary of a legal controversy. Creating
the issue as a question gives readers a story from your
perspective to fit within that boundary. Like painters who
combine color, perspective, and light to create a picture on
a canvas, so do attorneys who combine fact, law, and issue
to create a story on a page. Issue framing is an art, not a
science — an art that can be acquired with practice.”
Gerald Lebovits

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 ISSUE TYPES
• Issues can be broken into three
broad categories:
o A question of which law applies;
o A question of how a law applies;
o A question of whether a law
applies at all.

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 ELEMENTS INVOLVED IN ISSUE

• The CONTROLLING or APPLICABLE LAW

o This is the specific law that governs the
dispute - constitutional provision, statute,
ordinance, regulation, or case law doctrine,
principle, rule, test, or guide.
o This can be achieved implicitly or explicitly,
with your desired level of specificity based
upon the complexity of the case and issues
involved.

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 •The LEGAL QUESTION
o This refers to the precise legal issue
concerning the law governing the dispute,
raised by the facts of the dispute.
o It informs reader the nature of the dispute.
• The Legally SIGNIFICANT FACTS or KEY FACTS
o This refers to those facts that impact the
outcome of the case, and are not ‘merely
explanatory or coincidental’.
o They are facts that raise the legal question of
how or whether the law governing the
dispute applies. 11
 Legally Significant Facts - Example
• A good example is the age of a criminal defendant
charged with the unlawful possession of alcohol.
• In this case, the defendant’s age would be a legally
significant fact because criminal liability is predicated on
his being under a certain age, namely 21 years of age.
• If the defendant were under the age of 21 and
possessed alcohol, he would be guilty; conversely, if he
was 21 or older, his actions would be legal.
• The age of the defendant changes the outcome of the
case in this example.

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 Nature of Issue
• The THREE ELEMENTS (controlling law, legal
question, key facts) make statement of issue
as either
o comprehensive – when it includes the
specific law and key facts.
o narrow or specific – when it includes
detailed facts: the more facts included, the
more specific (or narrow) the legal question
becomes.
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 Examples
• Comprehensive:
Under the Wills Act 1959, (Controlling Law), is a will valid
(Legal Question) if it is handwritten by a neighbour at the
direction of the testator, but not written in the testator’s
handwriting (Key Facts)?

• Narrow:
Under Malaysian tort law (Applicable Law), does a battery
occur (Legal Question) when law enforcement officers, while
making a lawful arrest, encounter resistance, use force to
overcome that resistance, and continue to use force after
resistance ceases (detailed Key Facts)?
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 FAILURE TO INCLUDE THE ELEMENTS
• Failure to include these elements results in an
abstract question, a broad statement of the
issue that is missing the legal (applicable law)
and factual context.
• Examples:
o Was the will valid?
o Did the police commit a battery?
• Hence, question presented should not only
pose the question.
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 Importance
• Importance of focusing on the elements of
the issue and identifying the issue in terms
of the elements is critical.
• It
o reduces the chance of misidentifying the
question presented by the facts; and
o helps guide the researcher/writer,
o thereby saving time and effort.
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WHY ISSUE SHOULD NOT BE TOO BROAD

• Not appropriate for several reasons:

o It is not helpful or useful for the reader who is
not familiar with the facts of the case.
o It does not guide the reader to the specific
law in question.
o It is not useful to the individual drafting and
researching the issue. It fails to focus the
researcher’s inquiry or guide the researcher
to the specific area of, say, battery law in
dispute. 17
 ISSUE IDENTIFICATION—
CLIENT’S CASE
• Keep in mind from the outset this
question: “What must be decided
about which facts?”
• Or phrased another way,
“What question concerning which
law is raised by these facts?”
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 Example:
• The client asks questions like "Will I win?", "Am I going to jail?",
"Am I liable?", or "Will I be evicted?“

• The issue section reframes the client's questions into legal

questions that identify the controlling legal rules and relevant
client facts.

• The question, "Can I sue?" becomes:

"Did the security guard at the shopping mall falsely imprison Bo Rong
when the guard held Bo Rong’s arm, preventing him from leaving the store
until the police arrived?"

• The question needs to be precise, complete, and straightforward.

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 ORGANIZING ISSUE/S
A. STEP 1: Identify each type of cause of action
Identify each type of cause of action and area of
law possibly involved.
• The purpose is twofold:
o To identify in general terms the issues involved.
o To provide a starting point for the identification
and clarification of each specific issue that
must be resolved in the case.

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 WHAT IS CAUSE OF ACTION?
• A CAUSE OF ACTION is a combination of facts
giving rise to
o a claim/right to sue in civil law; or
o a right to prosecution under criminal law.
• In short, ‘what might bring the parties into
court ‘.
• It provides the basis for commencing court
proceedings in order to obtain an appropriate
remedy or sanction by law.
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 Examples:

• Civil - negligence, breach of contract, trespass,

assault, false imprisonment, etc.
• Crime - theft, murder, rape, robbery, etc.
• Hence, a cause of action is the justification for
bringing legal proceedings.
• There are usually several required elements
that make up a cause of action, and the facts
of a case must satisfy each of these elements
for there to be a valid claim or prosecution.
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 What is Legal Element?
• Legal element is an essential requirement to each cause of
action.
• An act is regarded a violation of law only if each element
can be proved.
• It is made up of a basic set of requirements which must be
alleged and proved for the claim to succeed.
• Types of elements - actions (or omission), conducts,
standards, circumstances, condition, mental state, status,
state of affairs, causation, right, duty, consequences, time,
place, expectation, relationship, etc.
• How many elements are in a valid cause of action and what
are their constituents, depend upon what the cause of
action is. 23
 Illustrations – Civil Claims
• In civil claim, it is the plaintiff who must prove the
"elements" of the cause of action to win a given type
of case.
Example: For a claim of negligence, the elements are:
the (existence of a) duty, breach (of that
duty), proximate cause (by that breach), and 
damages.
If the plaintiff does not allege facts sufficient to
support every element of a claim, the court, upon
motion by the opposing party, may dismiss the
complaint for failure to state a claim for which relief
can be granted. 24
 Illustrations – Criminal Cases
• In criminal case, the burden of alleging the
elements of the particular offence charged, lies
on the prosecution.

Example: Constituent parts of a crime usually

consists of the actus reus, mens rea, and
causation.
To convict an accused each element of a crime
must be proved beyond reasonable doubt.
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 Specific Illustration
• Penal Code, Section 436: Under mischief by fire with intent to
destroy a house, etc.
Whoever commits mischief
• by fire or any explosive substance,
• intending to cause, or knowing it to be likely that he will
thereby cause,
• the destruction of any building
• which is ordinarily used as
o a place of worship, or for the administration of justice, or for the
transaction of public affairs, or for education, or art, or for public
use or ornament, or as a human dwelling, or as a place for the
custody of property,
shall be punished with imprisonment for a term which may extend to
twenty years, and shall also be liable to fine.
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B. STEP 2: Determine the elements of each cause of
action
• Determine the elements of each cause of action
identified in step 1.
• Steps 2, 3, and 4 should be applied separately to each
potential issue or cause of action identified in step 1.
o Choose one potential issue identified in step 1.
o Apply steps 2, 3, and 4 to that issue.
o Complete the identification of that issue before
addressing the next potential issue.
NOTE: Step 2 requires researching the area of law to
determine the elements necessary to establish a cause of
action.

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C. STEP 3: Determine the Key Facts
• Determine which of the facts of the client’s case
apply to establish or satisfy the elements of
each cause of action—the key facts.
• If there are no facts that satisfy or establish an
element, there probably is no cause of action or
issue.
D. STEP 4: Assemble the elements in the Issue
• Gather and assemble the elements of the issue
from the law and key facts identified in steps 2
and 3.
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E. Step 5: Address Multiple Issues and
Sub-issues
• Identify all potential issues and apply
the four-step process to each.
• NOTE: A single issue may have
multiple parts or sub-issues. Each part
or sub-issue should be separately
considered and addressed.

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 DRAFTING ISSUE STATEMENTS
• There is no single way to write the issues.
• Memo writers often use one of several conventions.
• All the conventions share certain key features. They:
o alert the reader to the 3 ELEMENTS:
 relevant law,
 questions that will be discussed;
 legally significant facts
o are stated in a neutral or non-conclusionary
fashion.

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 Be Neutral, No Conclusion!
• The Statement of Issue or Question Presented must be framed in a
neutral form to the point that either side might have written the same
question.
• This applies even in predictive writing.
• This means that the factual elements (or the key facts) components
must never contain legal conclusions or “beg the question.
• Otherwise, your reader could assume your analysis is not objective and
may only reflect one side of the issue.
Example

"Will Bo Rong be awarded damages because he was falsely imprisoned

by the store's security guard?“

This would not be a neutral question because the key issue (was he
falsely imprisoned?) is stated as conclusion.
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Further Examples:
CONCLUSORY QP: Under Malaysian law, can Ringo be
convicted of armed robbery when he displayed a toy
gun during the course of a robbery?
[This QP concludes that a robbery was, in fact, committed.]
NEUTRAL QP: Under Malaysian law, can Ringo be
convicted of armed robbery when he displayed a toy
gun while taking items from a store without paying
for them?

[This QP does not presume the existence of a robbery.]

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 Issue Drafting is Challenging!
• Expressing the issues accurately is one of the most difficult
aspects of opinion writing.
• Writers face the challenge of how detailed to make the
issue statement, how many issues to include, and whether
issues should be stated separately or as sub-questions.
• Experienced legal writers expect to redraft the issue
section as they rework the discussion section.
• While the initial version of the issues helps the writer
structure the discussion, the iterative process of thinking
and writing often changes the content and structure of the
legal issue.

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 Formulating Issues Steps
• Identify claim, crime, defense or elements
• Summarize necessary facts related to the dispute
• Pose a question that identifies the disputed issue
• Phrasing of the issues should strongly suggest the
answers you want.
• Count the Issues.
• Number of issue statements must match the parts in the
discussion
• Organize and list the question(s) in the same order of the
discussion.
• Can have either specific references to client or general
references - better practice is to use parties’ names.
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 Styles of Drafting Statements of Issue
• What style to adopt is determined by the type of writing
the writer undertakes: Non-Predictive or Predictive

o NON-PREDICTIVE WRITING involves PURELY LEGAL

QUESTION or FINDING OF HISTORICAL FACTS - Writer
is given a problem to research the state of the
governing law, without referencing a client .
o Occasionally, assigning lawyers will ask an abstract or
general legal question when they need an update on a
specific area as background for a client matter, or for a
firm newsletter, or for a presentation.

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Non-Predictive Writing Issue Formats
1. Straight forward presentation of the Legal Question.

The statement can begin with

• “What [insert legal question]”, or
• “Does [insert legal question]”, or
• “Can [insert legal question]”.

Examples: “What…”
o "What is the current state of the law on false imprisonment?”
o “What is the scope of activity that has been permitted by the
Bar Council or courts considering the practice of ‘marketing’
by advocates and solicitors in Peninsular Malaysia?”
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Continue…

• Example: “Does….”
o “Does the Malaysian Bar rule concerning
advertising by lawyers apply to advertising
for legal services on the Internet?”

• Example: “Can…”.
o “Can squatters in a residential property be
evicted by the owner under the National
Land Code?”
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Continue… Non-Predictive Writing Issue Formats

2. Declarative “Whether” format

• This format declares the issue to the
reader.
• Punctuation Note: "whether" introduces a
statement, and not a question, so there is
no question mark at the end of the
sentence.

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 Examples
o “Whether squatters in a residential property can
be evicted by the owner under the National Land
Code.”
o “Whether the Malaysian Bar rule concerning
advertising by lawyers applies to advertising for
legal services on the Internet.”
o “Whether a conspiracy to commit extortion
requires that the conspirators agree to obtain
property from someone outside the conspiracy.”

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 Critiques of Whether Formats

• Some lawyers prefer it because to their ear it sounds

more neutral.
• Others don't like it because it is an incomplete,
ungrammatical sentence, and can sound awkward.
• The format consists of one sentence.
• Hence, it is not recommended for predictive writing.
• While it states the legal question, it lacks facts or
details, especially when the fact situation is
complex.

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 Predictive Writing Issue Formats
• PREDICTIVE WRITING involves PREDICTION BASED
ON CLIENT FACTS.
• Writer is asked to research on the applicable rule/s of
law to a set of facts and predict a result (whether
rules support or otherwise client’s position).
• In this format, 2 critical components are:
a) a brief quote from the element of the law in
contention (the legal element/s), and
b) several of the important facts relevant to
that contention (the factual element).
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 Predictive Writing - Issues Drafting Steps
To draft the Issue for the research memo, follow these three steps:

STEP 1: From your initial research, identity the

elements of the legal principle.
Example:  Section 378 of Penal Code: Theft
Theft is (1) the taking; (2) with dishonest intention (3) another
person’s property; (4) without consent; and (5) moving property
in order to such taking.

STEP 2: Locate the key facts that might either prove or

disprove the elements of the crime or legal theory.
Before starting to write the memo, make an outline that connects
the facts with the elements of the legal theory .
          42
 Example outline of elements and facts
(Element 1)   Defendant picked up purse
(Element 2)   Mrs Hariah owned the purse
(Element 3) Mrs Hariah did not consent
(Element 4)   Defendant carried away the purse

Defendant said he was going to turn it in

(element 2)
Defendant still had it 45 minutes later
Defendant did not tell police until asked
Defendant explained his plan to turn it in
Purse was unopened plainly visible in the car
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 Possible Resulting Issue Statements
1.(Poor example)   Did  defendant commit theft? (Missing are
the key facts — issue is too broad)
2. (Poor example) Did defendant commit a crime by taking a
purse that did not belong to him? (Missing are the actual legal
theory, and key facts for each element)
3.(Poor example)   Can a defendant be convicted of theft?   (This
is a different issue — the correct issue involves the particular
facts of this case, not all defendants generally).
4.(Good example)  Did  defendant  commit theft under the PC
when he picked up the shopper's purse without the latter’s
consent, put it into his car and drove  away,  but explained
that he was planning to turn the purse into the police the
following day? 44
 Further Illustration
(a Philippine case) – Libel case
• Based on the facts of the case of Yambot v. Tuquero.
The Facts
• On May 26, 1996, the Philippine Daily Inquirer (PDI)
printed an article headlined Judge mauled me, says
court employee, carrying the by-line of petitioner Volt
Contreras. The article reported an alleged mauling
incident that took place between respondent Makati
Regional Trial Court (RTC) Judge Escolastico U. Cruz, Jr.
and Robert Mendoza, an administrative officer
assigned at the Office of the Clerk of Court of the
Makati RTC. G.R. No. 169895, March 23, 2011.
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Claiming the article to be false and
malicious, Judge Cruz initiated a complaint
for libel with the City Prosecutor of Makati.
In particular, Judge Cruz protested the
following sentence in said article:
According to Mendoza, Cruz still has a
pending case of sexual harassment filed
with the Supreme Court by Fiscal Maria
Lourdes Garcia, also of the Makati RTC.

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The Law:
Libel is defined as (i) a public and malicious
imputation of a crime, or of a vice or defect, real or
imaginary, or any act, omission, condition, status or
circumstance (ii) tending to discredit or cause the
dishonor or contempt of (iii) a natural or juridical
person, or (iv) to blacken the memory of one who is
dead.
The following elements constitute libel:
(a) imputation of a discreditable act or condition to
another;
(b) publication of the imputation;
(c) identity of the person defamed; and,
(d) existence of malice. 47
The Issue in this case might be written this way:

Did Contreras make a “public and malicious

imputation of a crime, or of a vice or defect”
when he wrote that “[Judge] Cruz still has a
pending case of sexual harassment filed with
the Supreme Court.”

The issue is made up of a quote from the

element in contention and facts that are
relevant to that element.

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 How Much Facts?
• A typical question presented or issue statement begins
by stating the legal question and ends by describing
the factual situation.
• Example:
“Is the owner of a motorcar liable if someone borrows
the motorcar and subsequently causes an accident?”
• Note: It is rarely possible to include all of the relevant
facts in the question presented, though you should try
to include the most important ones.
• Thus, for example, one might add “and the owner
knew that the driver was intoxicated” at the end of
the previous example. 49
Possible Issue Stetement Formats
1. Legal question + concise statement of
relevant facts
2. Under [controlling law], Does [legal
question], When [legally significant
facts] format – (with 2 further sub-
styles)
3. ‘Multi-Statement’ or ‘Deep Issue
Statement’ Format
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 NO 1. “Legal question + concise statement”
Format
The LEGAL QUESTION can begin with any of the
listed Common Verbs and the KEY FACTS can be
connected with the appropriate Transitions.

Common Verbs: Common Transitions:

– “Can…………………………………….’when…’……………………………………..?”
– “Did …………………………………….’where…’…………………………………….?”
– “Was…………………………………….’when…’……………………………………..?”
– “May…………………………………….’when…’……………………………………..?”
– “Will…………………………………….’where…’……………………………………..?”
– “Is…..…………………………………….’when…’……………………………………..?”
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 It looks like this…
• “Can . . .[insert question] + when [insert legally
significant facts]?”
• “Does . . .[insert question] + where [insert legally
significant facts]?”
• “Was . . .[insert question] + when [insert legally
significant facts]?”
• “May . . .[insert question] + when [insert legally
significant facts]?”
• “Will . . .[insert question] + where [insert legally
significant facts]?”
• “Is . . .[insert question] + when [insert legally significant
facts]?”
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 Notes
• Notice – there is no rule of law stated in this
format.
• This is the most common way to express an
issue because it directly connects to the task
of answering the client's questions.
• A good question gives the reader an
immediate sense of the key facts and the legal
tests.

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 Example

• Your client, Loh See Mah, learned that a bank employee had snooped
into his banking information for personal reasons. There are no cases
in your jurisdiction claiming damages for invasion of personal privacy.
Here is an example of an issue statement on whether your
jurisdiction will adopt a new cause of action.

Format used:

“Will . . .[insert question] + where [insert legally significant facts]?”

Will the court recognize a civil action for invasion of personal

privacy and award damages when a bank's employee examined
Loh See Mah's bank account without authorization over a period
of 10 months?
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 Further Examples
• Format used:
“Can . . .[insert question] + when [insert
legally significant facts]?”
Can Carrol Tan enforce the Wah Seng
covenant-not-to-compete when the
covenant prohibits Wah Seng from making
sales contracts for three years and applies to
the three States closest to Carrol Tan’s
headquarters?
55
• Format used:
“Does . . .[insert question] + where [insert
legally significant facts]?”
Does the Bar Council Ruling concerning
advertising by lawyers apply to all of our
lawyers in all of our offices when
advertising on the Internet?

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 Limitations of the Format
• Like ‘whether’ format, this format
also adopts a one-sentence
structure..
• While it states the legal question, it
lacks facts, especially when the fact
situation is complex, and details on
the law.
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NO 2. “Under/Does/When” Format
• Under [insert rule of law] + does [insert question] + when [insert legally
significant facts]
(or alternatively)*
• Under [insert rule of law] + can [insert question] + when [insert legally
significant facts]
(or alternatively)*
• Under [insert rule of law] + did [insert question] + when [insert legally significant
facts]
(or alternatively)*
• Under [insert rule of law] + was [insert question] + when [insert legally significant
facts]
(or alternatively)*
• Under [insert rule of law] + is [insert question] + when [insert legally significant facts]
(or alternatively)*
• Under [insert rule of law] + would [insert question] + when [insert legally significant
facts]
(or alternatively)*
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 Notes
• Some legal writing experts recommend this format
because the structure acts as a checklist. If you follow
the format you will be sure to cover the law, the facts,
and the question to be answered.
• When using this format, consider whether you are
addressing an issue that is ongoing, has occurred, or
may occur in the future, and adjust the language
accordingly.
• Use of “did” or “would” is appropriate in place of
“does” for past and future issues, respectively.
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 Two Variations of the Format
1. SINGLE-SENTENCE structure format.
• It makes a general reference to the applicable rule of law or
cause of action, with material facts and the legal question. It
adopts SINGLE-sentence structure.
Example:
"Under the common law, does Loh See Mah have a claim for
invasion of privacy when the bank employee looked at her
bank records for personal reasons?“

In this example:
o under introduces the law being applied
o does asks the legal question
o when sets out the material facts
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Continue…
Example:
Under the Malaysian contract law that
recognizes an agreement made without
consideration if it is expressed in writing,
registered, and the parties stand in near
relation to each other, can there be an
enforceable contract when a woman on her
deathbed expressed her intention to leave all
her properties to her four adopted children?

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 More examples under US Law
• Under North Carolina law, the elements for a cause of action under defamation
are (1) defendant made false, defamatory statements about the plaintiff; (2)
those statements were published to a third person; and (3) the statements
caused injury to plaintiff's reputation. Tyson v. L'Eggs Products, Inc., 84 N.C.App.
1, 351 S.E.2d 834 (1987).
• Question #1: Under N.C. law does a person commit the tort of defamation
against a businessman when, at her personal internet web site, (1) she claims
the man had sexual relations with her when she was 16; (2) she claims he had an
affair while married; (3) she claims he made a "pass" at his wife's sister while
married; (4) she claims he is not living up to his divorce settlement; (5) she
claims he has failed to make child support payments; (5) she calls him a "jerk";
(6) she says he is a "mentally unstable monster" and "might resort to violence"?
• Question #2: Under N.C. law, if there has been defamation, are damages
recoverable when a person's business has lost a major account, and when the
person has suffered emotional stress to the point of weight loss, daily therapy
sessions, and prescription anti-depressants?
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Continue… “Under/Does/When” Format
2. TWO-SENTENCE structure format
• It makes a specific reference to the constituent elements/criteria of the
applicable cause of action, the material facts and the legal question. It
adopts TWO-SENTENCE structure.

Example:
Under the Malaysian Penal Code, a person may be convicted of robbery
if, in order to commit theft, or in committing the theft, or in carrying
away or attempting to carry away property obtained by the theft, he, for
that end, voluntarily causes or attempts to cause to any person death, or
hurt, or wrongful restraint, or fear of instant death, or of instant hurt, or
of instant wrongful restraint. Did Janiah commit robbery when she
brandished a gun at the sale assistant and threatened to shoot him in the
course of committing theft?

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 No 3:‘Multi-Statement’ or ‘Deep Issue Statement’ Format

• Memo writers use single sentence issue

statements because of convention; there is no
rule that says you must write it in one sentence.
• The single sentence issue statement can be long,
complex, and hard for the reader to understand
on first reading.
• Bryan A Garner: “[One-sentence structure] typically
ruins the chronology, forces you into overlong
sentences, makes the issue unduly abstract, and
results in altogether incomprehensible statement.”

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• A multi-statement or deep issue statement
format is gaining popularity because it can be
easier to read, is more comprehensive, and is
more concrete.
• This format is essentially a longer version of
the “under, does, when” format spread over
three or four sentences.

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 The “Deep Issue” Structure
• Breaking the issue into separate sentences:
o Opening sentence:

UNDER ……[insert rule of law]

o Following sentence/s:

WHEN …….[insert legally significant facts]

o Closing sentence:

DOES [insert the legal question]

• The format calls for a

o short explanation of the legal principle involved, then
o a brief note of the material facts, followed by
o the legal question that will be answered in the opinion.
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 Example

• In this example the writer elaborated on the legal criteria/elements and

added more facts to support the question.

“(Rule of law) Under the common law, an action for invasion of privacy can
exist where there is an intentional intrusion into a person's private affairs,
without legal justification, and under circumstances that a reasonable
person would find highly offensive. (Facts - When)The bank employee
admitted that he looked at Loh See Mah's banking records over a period of
10 months for personal reasons, unrelated to the bank's business.
(Questions - Does) Was this act an invasion of Loh See Mah's privacy
entitling her to damages?”

• The multi-statement format can add clarity.

• There is a caveat: Be careful not to get carried away and write too much. It
should be no longer than 75 words.
• This format also avoids the problem of unmatched tenses that often makes
one-sentence issue statements confusing.
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 Which Format to Adopt?
• You should select the format that you feel best
presents the legal questions in a manner favourable
to your client.
• However, take note whether you are
o presenting a pure question of historical fact;
o a pure question of law; or
o a mixed question of law and fact.
• Certain issue-statement formats tend to work better
for some of these kinds of questions than for others.

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Continue…
• Under-does-when and multi-statement
formats are tailor-made for mixed question of
law and fact – Predictive Writing
• But these formats may not work well in Non-
Predictive Writing or when the question
concerns only the finding of historical facts.
There is no “under” to address.

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 Summary
Issue statements (sometimes referred to as Questions
Presented) should:

1. Be expressed in any one of the formats recommended

– a single sentence or multiple sentences.
2. Be a question that can be answered "YES" or "NO“.
3. Be expressed in a neutral form NOT CONCLUSIONARY.
4. State the legal issue that you will analyze.
5. State the name/s of the party or parties.

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Continue…

6. If more than one party is involved as potential

defendants, formulate a separate issue that deals with
each party – as each party may involve a separate
factual elements to answer the legal questions raised.
7. Include enough facts to provide necessary context to
the reader.
8. Order facts chronologically. Otherwise, readers forget
the question by the time they get to the end of the
sentence.
9. Generally, if you are addressing more than one issue,
express each issue separately, usually in number
format, comporting to the advice above.
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 Drafting Statement of Issue for
Counter-Arguments
• Anticipate possible counter-argument/s to each issue raised.
• Formulate their statement of issue.
• Importance:
o In a law office memorandum, identifying counter-
arguments helps your client assess the strength of a legal
position, the availability of defenses to a claim, and
alternative ways of analyzing a situation.
o In persuasive writing such as a brief to a court, counter-
arguments address and dispose of likely arguments that
the opposing side will advance.
o In advocacy, counter-arguments will limit, distinguish, or
neutralize arguments opponent’s arguments.
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 Some Tips

Skilled legal writers do everything possible to make the issue statement

useful to the reader. Here are some expert tips:
• If there is more than one issue, put the important issue first.
• Be as specific as possible, incorporating key facts and the law.
• Look to the language of the governing statute or legal rule for phrasing
ideas.
• Keep the same convention and format for all issues. Changing the
structure can make it difficult to read. But don't be a slave to a format –
the reader's understanding is more important than consistent format.
• Number the issues and use common legal writing conventions for
numbering. Most writers use numbers for issues and lower case letters
for sub-issues.
• Check whether your firm has preferences on style and format.
• Make sure your brief answer and discussion closely track your issues,
using the identical numbering system.
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 Logically Ordering the Issues

• In choosing how to order the issues, it is important to

understand that some legal issues must logically precede others.
• Some issues must be established in order for other issues to
have relevance. These are often referred to as “threshold”
issues. Thus, when choosing the order of the issues, logic should
be the first consideration. Consider the following examples:
1) In a defendant’s motion to suppress evidence because of an
illegal search without a warrant, it would be logical to first
address the question of whether the police’s conduct was
actually a ‘search’ within the meaning of the criminal
procedure code.
2) In a civil case of breach of contract, it might be necessary to
establish first that the court actually has jurisdiction, or that
the statute of limitations has not run.
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 continue…
• Once threshold issues have been dealt with and logic has been considered,
usually lawyers order their issues by considering the relative strength of
their arguments.
• Generally speaking, a person’s attention span when reading is at its peak at the
very beginning, then tapers off to a low point, and then increases again when
the end is near, although not to the same level as the beginning. This is called
the “attention curve”. This is generally true when trying to concentrate on
anything. Think of any class you have attended-your attention is highest at the
beginning, then you may struggle to stay focused for a while, but then your
hear words like “finally” or “in conclusion” from your instructor and your
attention jumps back up again.
• Along these lines, you should always put your best arguments first in order to
take advantage of your reader’s natural attention patterns, followed by
weaker arguments.
• However, if there are many strong arguments, some lawyers prefer to save one
of them for the final argument, in order to leave the judge with a lasting
impression of the overall strength of the brief, taking advantage of a natural
final “jump” in attention given to the writing. 75
 FORMULATING SUB-ISSUES
• The statements of issue in the examples thus
far are “Global Issues”, i.e. the large-scale
organization of the legal questions that need to
be answered.
• The global issue is also referred to as the “Big
Issue,” or the “Main Issue”.
• However, once the global issue is established, it
might be necessary to state or find the little
sub-issue/s.
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 Purposes of Sub-Issues
• Sub-issues are used for clarity. Sometimes the reader
will understand your analysis best if an issue is
presented as a series of linked sub-issues.
• Sub-issues can help you organize your thinking in
order to structure your memo and will give you some
good descriptive headings to guide the reader
through your analysis.
• Just like the main issue, each of the sub-issues gives
rise to a legal question and involves determining the
material facts.
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Connection between Issues and Sub-issues

• The main issues/question presented is the overall

legal issue that will be resolved in the memo.
• A sub-issue/s are a point or query that must be
addressed to substantiate/establish the legal
element/s or constituent/s of the legal principle
that form the basis for the cause of action.
• It is important to address sub-issues in the order
that they must be resolved to support legal
analysis.
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 How many Issues and Sub-issues
do I need?

• It is not surprising that novice legal writers sometimes go

overboard in writing the issues to show that they considered
every possible component of a problem. As a memo writer, you
do want to show that you considered every avenue of legal
analysis. But you demonstrate your legal abilities more by
thoughtfully homing in on the important issues, rather than
with a shotgun approach.
• Too many issues or sub-issues can overcomplicate the analysis
and overwhelm the reader with detail. The reader is distracted
from the main point if there are too many sub-levels, especially
if some are not needed to answer the client's question.

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 How many sub-issues do I need?

• The sub-issues are determined by the legal elements or tests

involved in the problem. The elements are discussed individually
along with the relevant legal rules.
• There a certain logical order when presenting the elements. Let the
legal rules guide you in establishing the order of the sub-issues.
• Some rules are stated with elements that must be proven. Other
rules are just stated without being broken into elements
• Sub-issues are legal questions to be addressed, not merely a list of
the components of a legal test a court will apply to come to a result.
• Novice legal writers often think they need to present each element
of the legal test or each fact that needs to be proved as a separate
sub-issue.
• You should only include those issues where there is a factual or legal
question you need to analyze in the discussion.
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TWO WAYS TO DRAFT SUB-ISSUES

1. By breaking the main

issue/question presented
(in the Statements of Issue
section) into sub-issues.

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 Example
• The rule is that a defendant commits house-trespass if he
enters into or remains in any building, tent or vessel used
as a human dwelling or any building used as a place for
worship, or as a place for the custody of property and
commits criminal trespass therein.
• Legal Question: Whether the client can be convicted of
“house-trespass” under section 442 Penal Code.
• The issue is then broken into sub-issues by finding each
element or “component part” that may need to be
analyzed.
• The order looks something like this:
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 Order of Issue and Sub-Issues
• ISSUE STATEMENT for the MAIN/GLOBAL ISSUE
“Did the client commit house trespass when…(add legally
significant facts)”
o Sub-issue 1: Whether (structure in question) is a
“building…”
o Sub-issue 2: Whether (structure in question) is a human
dwelling.
o Sub-issue 3: Whether the client entered into or remained
in the (structure in question)
o Sub-issue 4: Whether the client committed criminal
trespass in the (structure in question)

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 Another Example (under US law)
• The Rule: A person is guilty of criminal sale of a controlled
substance if he makes a knowing sale and the product is any
quantity of a controlled substance.
 
• The Main Issue: Is defendant guilty of criminal sale of a
controlled substance when he … (add legally significant facts)
o Sub-issue A: Did defendant make a sale of a controlled
substance when he … (add legally significant facts)
o Sub-issue B: Did defendant know he made the sale of a
controlled substance when he ... add legally significant facts)
o Sub-issue C: Was the product any quantity of a controlled
substance in that … (add legally significant facts)

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Another Way to Draft Sub-Issues

2. By merging the elements into a single

issue statement and the sub-issues
became sub-headings or descriptive
headings in the discussion (see
Discussion/Analysis section).

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 Example
DISCUSSION/ANALYSIS

MAIN ISSUE I - Did the client commit house-trespass when…

Client wants to know if he has committed house-trespass . A person commits house-trespass if he
enters into any dwelling and commits criminal trespass therein.
Sub-issue 1: I The first issue is whether (structure in question) is a dwelling.
R A dwelling has been defined as…
(E) In Doe, the court held that “X” was a dwelling because…
A The structure here is similar to “X” because…
C Therefore, the structure is a dwelling.

Sub-issue 2: I The second issue is did the client “enter into” the dwelling.
R
(E)
A
C
• CONCLUSION as to GLOBAL ISSUE
Therefore, because of the mini conclusions in the sub-issues, client committed house-trespass.
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 Another Example (US Law)
• DISCUSSION
Main Issue: Can the client be guilty of criminal possession of a
controlled substance in the seventh degree?
Under Penal Law § 220.03, “A person is guilty of criminal
possession of a controlled substance in the seventh degree when
he knowingly and unlawfully possesses a controlled substance.”
Sub-Issue 1: Did the defendant possess a controlled substance
when he…?
(proceed with analysis of sub-issue)
Sub-Issue 2: Was the possession unlawful when he …?
(proceed with analysis of sub-issue)
Sub-Issue 3: Did the defendant knowingly possess the
controlled substance when he …?
(proceed with analysis of sub-issue)
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Sub-Issues as Sub-Headings in Discussion

• This format merges the elements

into a single statement and the
sub-issues became sub-headings
in the discussion.

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 DISCUSSION

ISSUE 1: Did the defendant commit larceny if…(add legally significant facts)
Whether Defendant is guilty of larceny depends on whether the facts support
the four elements of larceny: (1) taking, (2) carrying away, (3) the property of
another, (4) with intent to permanently deprive the owner of possession. [Cite
law for this definition].

The evidence satisfies the first three elements.

(Subheading):
1. Defendant did "Take" the Purse

The first issue is whether Defendant did "take" the purse. Under the
definition of larceny, a person "takes" property when he or she "lays hold
or grasps it." [Cite law]. There is no dispute that Defendant grasped the
purse in his hands, and thus satisfied the "taking" element.
89
 (Subheading):

2. Defendant did "Carry Away" the Purse.

Second, when Defendant moved the purse away from the

store and put it in his car, did he "carry it away" under the
definition of larceny? To "carry away" property means to
move it away from the possession of the owner. [Cite law]
Moving property out of the sight of the owner without
permission or off the owner's premises, constitutes a
"carrying away." [Cite law] Here, Defendant not only moved
the purse from the area of the store, but he put it into his
car and drove away. He took the purse far from the view of
the owner, had the owner been nearby. Accordingly,
Defendant's conduct satisfies larceny's "taking away"
element.
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 (Subheading):

3. The Purse Was "Property of Another."

Third, there is no dispute that the purse was the "property of another." Mrs.
Harris will testify that she owned the purse. Defendant in effect admitted he
did not own it when he told the officer he planned to turn it into the police.

(Subheading):

4. Evidence of "Intent to Deprive Permanently.“

The evidence is mixed on the fourth element of larceny, "intent to deprive

permanently." Intent is a subjective mental state. [Cite law]. Evidence that
proves intent, however, can be both the direct testimony of the defendant
and circumstantial evidence. [Cite law].     

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(Argue prosecution’s case:) Circumstantial evidence supports finding that the
Defendant had the intent to deprive. Before picking up the purse, he looked
around, perhaps to avoid being seen. He did not report the lost purse to the
store manager. He put it into his car and drove away. When stopped by a
policeman, Defendant did not volunteer that he had the purse. These facts
show that Defendant intended to keep the purse, at least until he had a chance
to check its contents.

(Argue the defense case:) On the other hand, Defendant will testify that he
planned to turn the purse into the police. If a jury believes his testimony, then
that evidence alone would be enough to acquit him, because it would show he
lacked the intent to deprive. [Cite law on reasonable doubt raised by
defendant's testimony]. Also, according to the policeman, Defendant left the
purse in plain view and did not deny having the purse when asked. This
evidence shows that Defendant was not hiding the purse, and thus is evidence
showing lack of intent to commit the crime. [Cite law on general intent to
commit crime].

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 (Subheading):

5. Sufficiency of Evidence of Larceny

(Summarize and conclude:)

There is suffi­cient evidence  to  charge  Defendant  with larceny because
there is evidence of each of the crime's four elements.  [Cite law on
sufficiency of evidence for charge]. There is little factual dispute on the first
three elements, but on the intent element there is evidence on both sides.
The defense evidence, if believed, could raise reasonable doubt about
whether Defendant intended to keep the purse or its contents. [Cite law on
burden of proof of larceny]. Defendant did not hide the purse, did not open
the purse, and did not deny having the purse. His conduct is consistent with
his stated plan to turn the purse into the police the following day. There
appears a good chance, on the facts currently known, that a jury would
acquit Defendant of larceny.

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 Sub-issue to Sub-issue?
• As a general rule, do not go below the sub-issue level.
• Two levels of issues are almost always sufficient to parse a
legal question and allow your readers to follow your analysis.
• If you must, use this example, based on Sub-issue 4 above.

Example:

Sub-issue 4: Whether the client committed criminal trespass

in the (structure in question) when ...
o Sub-sub- issue 1: Whether the client intended to commit
an offence when he... (add legally significant facts)

94
 Thank You
 (Issue-finding is challenging and
extremely important to legal
analysis, so you should practice
framing issues as often as possible.)
95
Further readings:
• Persuasive Issue Statements at
https://www.law.georgetown.edu/academics/academic-programs/legal-writing-sc
holarship/writing-center/upload/Geenberg-Weingast-Issue-Statement.pdf

• Question Presented at

https://www.law.gwu.edu/sites/www.law.gwu.edu/files/downloads/Ques
tionPresentedTipSheet.pdf

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