The last post covered facts that must or should be included in the brief. This one covers five type of facts that should be edited out:
Needless dates — Justice Altio in an interview criticized briefs that were full of irrelevant dates. He specified that among recounting all sort of things that have dropped out of the case and are no longer important on appeal. 13 Scribes Journal of Legal Writing 174 (2010)
Witness-by-witness accounts — Both Justice Scalia and Chief Justice Toal of the South Carolina Supreme Court caution against citing testimony witness-by-witness. They agree that the fact statement should instead be organized chronologically. Scalia and Garner, Making Your Case (2008) at 95; Toal, Vafai, Muckenfuss, Appellate Practice in South Carolina (2d ed. 2002) at 213.
Adjectives and Adverbs – adjectives and adverbs are problematic when stating facts because they, by nature, reflect opinions. The temptation is to embellish. Was the car going fast or very fast? And what does fast mean? Two alternatives are: 1) quote witnesses to show that you are stating their descriptions rather than a fact, or 2) use stronger verbs. It is the difference between saying, “She was sad” and saying, “She sobbed for over an hour.”
States of mind – one’s state of mind is likewise not a “fact” as much an opinion or conclusion. Again, the alternative is to quote the witness testimony to show that you are accurately recounting testimony rather than stating a fact.
Legal conclusions – a temptation is to state a legal conclusion as a fact. It is easy to say, for example, that “the statement is defamatory” as if it was a fact. But that may be the ultimate conclusion in controversy. Better to say that the client was fired from his job and ridiculed in the community.
Does anyone else have any pet peeves about stating something as fact that just isn’t so? Please let me hear from you. You can reach me at www.attorneyroberthill.com.