- gathering the facts from the record
- selecting the facts to include and omit in the brief
- handling bad facts, and
- effectively telling your client’s story.
But first a word on the fact statement’s importance.
Justices and Judges uniformly agree that the fact statement is important. Chief Justice Roberts has said that a first-rate fact statement has “got to be a good story. Every lawsuit is a story. . . . Believe it or not, no matter how dry it is, something’s going on that got you to this point, and you want it to be a little bit of a page turner, to have some sense of drama, some build up to the legal arguments.” 13 Scribes Journal of Legal Writing (2010) at 16.
Chief Justice Toal of the South Carolina Supreme Court agrees. In a treatise that she co-authored, then Associate Justice Toal lamented that the fact statement is generally underestimated. In her view, whether a party wins or loses on appeal will often depend to a considerable extent on how well he or she presents the facts. Toal, Vafai, and Muckenfuss, Appellate Practice in South Carolina (2d Ed. 2002, S.C. Bar – CLE Division) at 212-213.
While this list could go on, and on, I will end with a reference to a scholarly article published in the Toledo Law Review. In it, the authors list 10 misconceptions that result in bad briefs, including the misconception that briefs are all about law, not facts. Ricks and Istvan, Effective Brief Writing Despite High Volume Practice: Ten Misconceptions that Result in Bad Briefs, 38 U.Tol.L.Rev. 113 (2007). This part of the article references the academic sources on the point, and provides excellent tips on how to write an effective narrative.
Has anyone read a particularly effective Statement of Facts in a brief? Please let us hear from you. You may reach me at www.attorneyroberthill.com.