You can preserve your credibility for formulating the issues on appeal even-handedly; but there is another challenge: You must also make the questions comprehensible. If the judges cannot understand what the case is about from the initial substantive exposure to your writing — a statement they expect to be clear — they may have far less patience with the parts of your brief that may legitimately be complex.
A good brief writer can formulate clear, neutral-sounding questions but frame them in a way that tends (subtly, of course) to suggest the answer the writer seeks. The question should not present your argument, but it should express a clear point of view about the case.
An example from one of our recent cases may demonstrate the distinction. It was an antitrust case. Our opening brief (for the appellants) stated five issues presented and did so in less than half a page. We slightly loaded one of them with what we thought were helpful facts:
Whether defendant can be labeled a “monopolist” under Section 2 of the Sherman Act because it owned the only bowling center in a small area, even though uncontradicted evidence showed that defendant lacked power to exclude competition or control price.
Our adversaries took a different approach. They heavily loaded their issues presented and took five pages of their brief to state them. The first issue presented, according to our adversaries, was:
Was the finding of the jury that [defendant] possessed monopoly power in the Antelope Valley of California (“the relevant market”) supported by substantial evidence when there was evidence (a) that over time [defendant‘s] share of the relevant market increased and, ultimately culminated in [defendant] achieving a 100% share of such market; (b) that two competitors of [defendant] withdrew from, and no competitors entered, the