Writing the Statement of Facts
We have all been told, whether during law school in legal-writing classes or since graduation at continuing legal education seminars or in books, that stating the facts is crucial, that a judge should be ready to decide in our favor after reading our statement of facts, and so on. But how do we state the facts that well?
To state the facts well, we must realize that the Statement of Facts is an implicit argument. What is an implicit argument? Any argument, whether implicit or explicit, is an answer to the question "why". Why should your child finish the homework due tomorrow? Why should your boss give you a raise? Why should the jury disbelieve that witness? Why should the judge exercise his discretion in your client's favor? Why should the appellate court extend that principle of law? The answer to these and other "Why?" questions is an argument.
If the answer to the question "Why?" takes the form "because" -- because, appellate court, precedent, public policy, and logic demand it; because, jury, he was contradicted by three disinterested witnesses and crossed his fingers when he took the oath; because, my child, if you don't you not only will you fail to learn, but other bad consequences will ensue -- then the answer is an explicit argument, that is, an argument that explicitly gives a "because" in answer to the question "Why?".
In the Statement of Facts, however, we are not allowed to argue explicitly. So what do we do? We argue implicitly.
What is an implicit argument? Just as an explicit argument is one that explicitly states the becauses, an implicit argument is one that does not explicitly state a because in answer to the question "Why?". Rather, an implicit argument arranges and emphasizes the facts to lead the recipient of the argument to the desired conclusion.
Do people make implicit arguments? All the time. If you have ever told a story about a run-in you had and, in the telling, concentrated on your motives, your good-faith, and your side of the story, so that anyone hearing your story would conclude that you were in the right, then you have made an implicit argument.
We can do the same thing in a Statement of Facts. Of course, in real life, implicit arguments often shade into innocent or not-so-innocent fabrication, such as when the story-teller's comebacks are snappier and the other person's responses are stupider than actually happened. In a brief, however, ethics, rules of court, and fear of the opponent's response should prevent fabrication. Rather than fabricate, the brief-writer must simultaneously tell the truth (as contained in the Record) while still arranging and emphasizing facts to lead the reader to the desired conclusion.
Such arranging and emphasizing of facts is where much of the brief-writer's skill lies. Like most skills, this one consists of both strategy (i.e., what you will write about) and tactics (i.e., how you will write what you write):
First, the strategy:
Determine the types of legal actors involved in your case. Legal actors come in five types: those that did nothing wrong, those that did something wrong, those that were wronged, those that are witnesses, and those that fit into a particular legal test or construct. Determine what type of legal actor you are representing, what type of legal actor you are opposing, and what other types of legal actor are involved whose stories you may be able to relate, even if that legal actor is not technically a party (as the prosecutor can relate the story of the victim of the crime to the extent permitted by the Record).
Pick your theme. The theme should be determined by the substantive law and policy, by the emotional content of the situation, and by the types of parties involved.
Decide which party's story will best present your theme. (This is similar to what the novelists call "point-of-view".) Do not automatically assume that you will write the Statement of Facts from your client's point-of-view. In many cases, your opponent or someone else (again, for example, the victim in a criminal case) may be the best point-of-view for advancing your theme.
Then, the tactics:
Put the facts into context. Typically, this is done either by beginning the Statement of Facts with a short, perhaps teasing, introduction of the crucial facts, e.g.:
"When the police found the murder victim's body, it was covered with blood, which turned out to be her own, and with bloody fingerprints, which turned out to be those of the defendant. (R. ....)"
or by beginning the Statement of Facts with a one- or two-sentence introduction that is not facially argumentative, e.g.:
"This is an age-discrimination lawsuit resulting from the lay-off of Plaintiff, a sixty-three year-old, long-time employee of defendant. (R. ...) Plaintiff claimed that he was laid off even though younger, worse-performing employees with less seniority were not. (R. ....) The facts are as follows:"
Enforce your conception of the legal actors by consistently referring them functionally, descriptively, or in terms that will bring to mind how you want them thought of. A person whose youth or immaturity you want to emphasize could be consistently referred to by his or her first name or nickname (e.g., "Mikey"), a person whose status you wanted to boost could be consistently referred to by "Mr." or "Ms." or a title, a person whose crucial aspect was the power to hire and fire could be referred to as "the Supervisor", a party that you wanted the court to think of as a massive business entity could be consistently referred to as "the Insurance Company" or "the Corporation", etc.
Maintain to the extent possible the point-of-view you have chosen. If necessary to maintain your point-of-view, you may even use the passive voice (horrors!) rather than the active.
Emphasize those facts that are important to you. Remember that matters on which you spend a lot of time will seem important and matters on which you spend only a little time will seem unimportant. Make this Rule of Proportionality work in your favor, rather than against you. Traditional methods of emphasis include quotation from the record, extensive (rather than sketchy) description, and repetition. More innovative methods of emphasis include reproduction of exhibits (such as photographs or documents) and presenting facts in chart or graphic form.
Describe, don't characterize. (Or, as the novelists say "Don't tell 'em, show 'em.") This rule is a consequence of the maxim that the Statement of Facts is an implicit, not an explicit, argument. Thus, instead of saying "Mrs. X was shocked when she received the telegram. (R. ...)", say:
"When Mrs. X received the telegram, her face turned white, she clutched at her heart, and she screamed 'My God, my God, my God'. (R. ...)".
Use one-word arguments to acknowledge and diminish your opponent's facts. Although explicit arguments are not permitted in the Statement of Facts, one-word arguments such as "although", "nevertheless", "however", and "even though" (I know, that's two words) are accepted. The beauty of these one-word arguments is that they meet your ethical responsibility to candidly state your opponents facts while simultaneously diminishing them:
"Although defendant denied making the statement (R. ...), three non-party witnesses, Smith, Jones, and Adams, all testified that they heard defendant make the statement. (R. ...) Smith testified that ...."
Use facially non-argumentative headings to help enforce your conception of the facts. Headings can be used in the Statement of Facts, too. Although your headings will be facially non-argumentative, you should draft them to divide up the story the way you want it divided, emphasize the facts you want emphasized, and thus advance your implicit argument.
Two final points:
- Along with the implicit argument in favor of your client, you are also making an implicit argument that you are a candid and trustworthy advocate. Since the Statement of Facts is probably your first chance to show the court that you are indeed candid and trustworthy, the Statement of Facts should contain extensive and scrupulous citations. Every fact must be cited -- and cited correctly -- or otherwise supported (e.g., by a footnote explaining that the court can take judicial notice, etc.) If the citation does not obviously support the fact, explain the citation or rework the fact. It only takes one or two mis-citations or non-citations to lose the implicit argument that you are candid and trustworthy, and losing that argument is probably worse both for you and your client than losing the implicit argument on the facts.
- The first job of any writer is to keep the reader reading. A Statement of Facts, like any other piece of writing, does you no good if it is not read. Therefore, make your writing interesting and easy to read.
In fact, if you do all this, you may want to submit a brief with no Argument section at all -- just the Statement of Facts -- to see if all those writing instructors and writing books are correct. Let me know how it works!
by David L. Lee