A recent post discussed which facts to include in a brief’s Statement of Facts, and suggested that bad, adverse facts be included if relevant. If you know opposing counsel will harp on it, better to go ahead and include the fact to deal with it. But how?
Juxtapose – Justice Scalia, in his and Bryan Garner’s book Making Your Case, suggest that the brief writer use juxtaposition to put some facts in high relief and others in low relief. With this technique, one can sandwich a bad fact between two good facts or quickly connect the bad fact with its explanation or context.
Although she testified that the light was red, she was 50 feet away during the snow storm.
Arranging facts – Legal writing expert Steven Stark, in his book Writing to Win, similarly advocates handling bad facts by placing them in a clause in the middle of the sentence, the middle of the paragraph, and toward the end of the fact section.
“He was fired” or “After he was reported stealing, he was discharged under the company policy.”
Go bare - Stark and others likewise advocate stating bad facts unadorned.
“The blue collided with the red car” or “Smith struck the red car broadside hard enough to knock it into the air and drop it on the other side of the road.”
Use passive voice – judicious use of passive voice takes the focus off of the actor.
“Mistakes were made” or “Smith admitted that he left the loaded pistol in the child’s playroom.”
Does anyone have another tip on how to cushion facts adverse to your client? Please let me know. You can reach me at www.attorneyroberthill.com.