I didn't know it, but apparently there is a debate raging among appellate lawyers about the best way of stating the issue in the part of the brief I think of as the "whether" clause.
At least, that's how I used to think of it. It seems that among the risk-takers, the use of the word "whether" is out when stating the issue on appeal. It's a movement that was started by Bryan Garner, who argued that the issue can be grasped more easily by readers if it is stated according to his "deep issue" formulation.
To learn more, read this post from Raymond Ward's Rain Man 2. The post clued me in to the debate and inspired me to purchase Garner's The Winning Brief, where the "deep issue" idea is explained in more detail. (But at fifty bucks, how will I be able to afford my whiskey?)