The other day in class, working with another one of the Lefkowitz v. Great Minneapolis Surplus Store, Inc. case briefs, I again asked the students what tense they noticed in the Issue section. The students pointed to past tense in the two questions conveniently labeled (1) and (2). But then there was an additional sentence that followed on the next line:
Defendant contends that it was a “unilateral offer” which could be withdrawn at any time without notice.
A student correctly pointed out that present tense was being used. But then I asked, “Where’s the question in this statement?” The students talked for a minute and quickly concluded that that statement really didn’t belong in the Issue section.
Next question: So where does it belong? And more importantly, how do you know?
One student suggested the Facts section since it seemed to be providing information about one of the parties to the case. So I then asked, what tense do we generally find in the Facts? Past tense, yet this is present.
Also: When do the facts happen? In the past, before the trial starts. What does “contend” mean? Argue. When do you argue? During the trial. Hence, this sentence should not be in the Facts section. Continue reading