By Louis J. Manetti
Attorney, Codilis and Associates, PC
The facts section of a brief can—and should—lend itself to the overall advocacy of the brief. The advocate who writes it as a necessary-but-unimportant regurgitation of events misses a valuable opportunity to persuade. Appellate experts give reoccurring advice to maximize the statement of facts.
Drafting an effective statement of facts is crucial to an appellate lawyer’s advocacy. Chief Justice William Rehnquist said, “[t]he brief writer must immerse himself in this chaos of detail and bring order to it by organizing[.]” Ross Guberman, Point Made 93 (2d ed. 2014). The facts section is the lawyer’s opportunity to organize in a compelling way: to cull the determinative facts from the chaos of the cold—and often long—record. Legal writing guru Bryan Garner and Supreme Court Justice Antonin Scalia stress the importance of facts: “Don’t underestimate the importance of facts. To be sure, you will be arguing to the court about the law, but what law applies—what cases are in point, and what cases can be distinguished—depends ultimately on the facts of your case.” Antonin Scalia & Bryan A. Garner, Making Your Case 9 (2008).
In his seminal work, Effective Appellate Advocacy, Frederick Wiener warns, “[t]he greatest mistake any lawyer can make, after he has written a fine brief on the law, is to toss in a dry statement of facts and send the thing off to the printer.” Frederick Bernays Wiener, Effective Appellate Advocacy 34 (revised ed. 2004). The strength of the facts section lies in its “selection and juxtaposition, without of course ever appearing to involve the irrelevant.” Id. at 36.
Like every other portion of the brief, the facts section should strive to persuade. Wiener instructs that the facts section, “should always be written in such a way as to advance the cause of the party on whose behalf it is prepared.” Id. Justice Scalia and Garner agree that the facts section must be designed to persuade: “[y]ou advance that objective by your terminology, by your selection and juxtaposition of the facts, and by the degree of prominence you give to each.” Scalia & Garner, supra at 94. And the effective brief obeys the maxim of “show, don’t tell.” That is, the lawyer should resist the urge to characterize the facts and tell the court what they mean. “Devote your energies instead to combing through the record in search of facts that are so clear and so strong that they make your case on their own.” Guberman, supra at 67.
As Garner puts it: “Think of your job as this: you’re trying to induce the judge to seethe in indignation while never revealing your own indignation.” Bryan A. Garner, The Winning Brief 600 (3d ed. 2014). It is more effective for the lawyer’s factual presentation to elicit a reaction than for the lawyer to tell the judges how they should be reacting. But there’s a crucial distinction—although the facts section should aim to persuade, it must not editorialize. “[A] court reading a Statement of Facts wants to feel that it is getting the facts, and not the advocate’s opinions, comments, or contentions.” Wiener, supra at 49.
Experts also emphasize that the facts must be unfailingly accurate. If the facts are inaccurate, the court “will lose faith in you[.]” Wiener, supra at 38. About inaccuracy, Justice Scalia and Garner stress, “[n]othing is easier for the other side to point out, and nothing can so significantly damage your credibility.” Scalia & Garner, supra at 93. What’s worse, a misstatement can cause the reviewing judges to question other assertions in the brief: “[f]alsus in uno falus in omnibus is a standard applied not only to witnesses by lawyers and juries, it is a standard applied to lawyers by appellate judges.” Wiener, supra at 95.
And although Wiener was writing over sixty years ago it would be a mistake to believe that modern appellate tribunals would be more forgiving of factual errors. Just three years ago, the First District Appellate Court noted a basic and inexcusable inaccuracy: the plaintiff’s brief reported that a defendant’s answer admitted his loan was in default, when in fact the answer contained no such admission. PNC Bank, N.A. v. Mathin, 2014 IL App (1st) 133061-U, ¶ 12 n.1. Justice Hyman—citing to Wiener’s book—wrote a concurrence lamenting that the misstatement had cast a shadow over the rest of the brief. Id. ¶¶ 31-34 (Hyman, J., concurring).
Part of being accurate is tackling bad facts head-on. Bad facts, “will come out anyway,” warn Justice Scalia and Garner, and “if you omit them you simply give opposing counsel an opportunity to show the court that you’re untrustworthy.” Scalia & Garner, supra at 95. As Wiener puts it, if the lawyer omits significant facts, “the opposition will rub your nose in them.” Wiener, supra at 39. Ross Guberman, the president of Legal Writing Pro, suggests blunting the damage of bad facts by beginning the sentence with “although” “to subordinate the bad fact to its more favorable context[.]” Guberman, supra at 82.
Also, seemingly minor stylistic choices can make the facts section more forceful and clear. For instance, subheadings can break an otherwise unwieldy section into digestible parts, “so that the reader can more easily grasp the relevance of what he reads.” Wiener, supra at 36. Guberman points out that good factual subheadings put verbs in the present tense, which is “another way to give your headings a conversational feel.” Guberman, supra at 74. Additionally, lawyers should refrain from listing every single date of an event or document in the record. “Using an exact date signals to the reader that it is important—that the reader should remember it for future reference.” Id.The Legal Writer: 40 Rules for the Art of Legal Writing 61-72 (2d ed. 2003)). Justice Scalia and Garner expound on this: “if you spell out every date, you confuse the reader and bog down the story.” Scalia & Garner, supra at 96. Instead, achieve narrative continuity by using relative phrases like “the next day,” and “three months later.”
Finally, use the litigants’ names—or at least a label other than their assigned role in the case. Advocates should avoid using the labels “appellant” and “appellee” because it “is bound to confuse; mistaken references are inevitable; and the designations simply reflect the happenstance of the outcome below and do not characterize the parties’ positions in the context of the controversy on appeal.” Wiener, supra at 95. Garner elaborates: “use real names for both parties and let your arguments do the talking. And if your goal is to cast a negative light on your opponent, you’ll have more success by using names anyway[.]” Garner, supra at 244.
The statement of facts can be a powerful narrative that prompts the reviewing judges to decide in the litigant’s favor. Through selection, juxtaposition, and the usages frequently urged by top authorities, the advocate should aim to write the facts “so that the court will want to decide the case in your favor after reading just that portion of your brief.” Wiener, supra at 37. A lawyer who writes a dry statement of facts as an afterthought does so at his or her peril.