The last two posts covered how to gather and outline the facts for an appeal, and the importance of completing the record. This one discusses what facts to include in the brief:
Statement of the Case Requirements — Rule 208(b)(1)(C), SCACR, lists categories of information that must be included within the case’s procedural history. This asks for basic information such as the nature of the case and a description of the order being appealed.
By requiring a statement of the nature of the case and defenses, the writer may summarize the case at the very beginning of the Statement of the Case.
Record citations — Rule 208(b)(4), SCACR, requires citations to the record. Liberal record citations keep the brief writer honest, and show the Court that honesty.
Supporting facts — the brief writer must, of course, include the facts necessary to develop the arguments on the issues raised. In stating the supporting facts, the level of detail may be driven by the standard of review. On appeal from a jury verdict, for example, the respondent may prevail by pointing only to the evidence that reasonably supports the verdict. An appellant may require a fuller recitation of the facts when the appellate court may take its own view of the evidence, as in equity cases.
Quotes — short quotes may speak volumes. In an appeal I am handling, an at-fault driver claims that a verdict is excessive despite testimony that the victim suffers pain continually. He testified that he hurts “still to this day” and has “every day” since the crash.This pithy testimony was worth quoting.
Background facts — An empirical study found that appellate judges prefer briefs that tell the client’s story rather than offer a bare-boned account of events. This preference grows with the judge’s experience as a judge. Chestek, Judging by the Numbers: An Empirical Study of the Power of Story, 7 JALWD 1 (2010).
Bad Facts and their Explanations — Justices and judges uniformly agree that attorneys should include material facts that are adverse to their case.
Has anyone faced opposing counsel who omitted a crucial fact that hurt his or her client? Please let me hear from you. You can reach me at www.attorneyroberthill.com.