Category Archives: Statement of Facts

9th Circuit Brief-Writing Tips

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Ninth Circuit Court of Appeals

Ninth Circuit Court of Appeals

Earlier this year, Rebecca A. Copeland reported on a meeting of the Hawaii chapter of the Federal Bar Association. Four judges of the Ninth Circuit attended and offered tips on brief writing. Rebecca was kind enough to report their advice. Three of their tips struck me the most.

Simpler is better

“Think through your case and figure out why you should win — try to come up with a short, simple explanation and trying it out on a non-lawyer to see if it makes sense.”

Early on, I viewed appeals as a law school exam in which one gets extra credit for raising every imaginable issue. I would then dress the issues up in legalese so that the reader would know that I knew what I was talking about. Thankfully, my thinking changed after I played a small part in a huge, multi-party appeal where a 3-page brief, making a single point without adjectives or adverbs, won the day. I now strive for simplicity.

Tell a story

“A well told story in the Statement of Facts will help guide the judge’s view of the rest of the argument.”

An earlier post of mine describes the power of story-telling and how narrative can drive the argument. Years ago, I helped represent a nurse who dispensed medicine in a prison. A prisoner “dashed” her by throwing his urine on her through the window of his cell. The Department of Corrections argued that it owed no duty to protect her from what it acknowledged was a dangerous convict. Filling in the details of the “dashing,” and how the nurse felt after being hit in the face with the convict’s urine, helped the case settle on appeal.

Tips on how to tell the story are available here.

Use the Table of Contents persuasively

“Take advantage of the Table of Contents to explain to the court what the case is about.”

Another post of mine explored how to use the Table of Contents effectively, both by nestling complete sentences to describe the case and to confirm the argument’s structure and flow.

Kudos to Rebecca for reporting the judges’ advice. Does anyone have any other tips to add? Please leave a reply or reach me at www.attorneyroberthill.com.

 

 

Stark’s Tips for Writing a Narrative

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The last post discussed limits on using story-telling techniques in an appellate brief’s statement of facts. This one covers Steven Stark’s tips on how to write the powerful story. Steven Stark authored the book Writing to Win. In his book, he offers six rules for the strong narrative:

  • think of yourself as a story-teller
  • write about people
  • remember that plot is overrated
  • create word pictures that make the story come alive
  • use specific detail
  • use realistic dialogue that reveals the person’s character.

In making these points, Stark urges lawyers to write about people because most of the legal writing that lawyers read are judicial opinions that often give “the law” far more prominence than the parties. He suggests tongue-in-cheek that no one would want to read a story titled, A Day in the Life of the Reasonable Man. Yet we lawyers continue to write our briefs that way.

Stark similarly suggests “realistic dialogue” or quotes to allow the parties to tell their story in their own words. When people speak in their own words, they may convey much more information than the substance of what was said. Stark suggests using the quotes to reveal the parties as people.

Lastly, Stark encourages brief writers to first focus on the specific and then the general, and use detail to capture place rather than describe people. Descriptions of people should be left vague, he argues, so that the reader may put themselves in your client’s place.

This is, of course, an incomplete and sketchy summary of Stark’s thoughts on how to write a strong narrative. For more guidance, please purchase the book. It is extremely helpful.

Anyone have other tips to add? You can reach me at attorneyroberthill.com.

 

A Brief’s Statement of Facts – Tell Story or Not?

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Earlier posts covered which facts to put in and which to leave out of an appellate brief. This one covers whether to structure the facts as a story or stick to a bare-bones narrative.

Kenneth D. Chestek did an empirical study on this issue. He prepared a set of “story briefs” using story-telling, which he defines as a detailed, character-based narration of a character’s struggles to overcome obstacles and reach an important goal. He drafted another set of briefs on the same issues as  “information-based narratives” and provided just the essential information without further context. Chestek then sent the briefs to a number of appellate judges, appellate law clerks, appellate staff attorneys, appellate practitioners, and law professors. He asked them which brief was more persuasive.

Most found the story briefs the more persuasive, with the preference for the story brief increasing with the reader’s experience on the job. Chestek preliminarily concluded from these results that “stories work” without attempting to explain how they work.

Jennifer Sheppard of Mercer University followed up on this in a scholarly article. Her survey of developments in cognitive research shows that we subconsciously draw on a pool of “stock stories” that shape our perceptions and reasoning. These stock stories, the article explains, create cognitive shortcuts that cast people, ideas or events into roles.

Given these stock stories’ power, Sheppard advocates that lawyers learn and use basic narrative techniques such as character, conflict, plot, point of view, setting, theme, voice, and style.The article describes how brief writers may use these techniques effectively.

But there are limits to the approach. Jeanne M. Kaiser of Western New England School of Law warns against confusing life with dramatic narrative. Her article explains the obstacles that brief writers face in story-telling by drawing on the problems that traditional non-fiction writers face. Kaiser’s point is that reality too often intrudes on a good story and that structuring a story must account for these unfortunate detours.

What do you think? Is story-telling or the bare-bones narrative better? And if you use story-telling, how do you deal with the intruding reality? Please let me know by leaving a reply or reaching me at www.attorneyroberthill.com.

 

 

Handling Bad Facts in the Brief – 4 Tips

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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.

 

 

5 Tips on Facts to Omit in a Brief

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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.

6 Tips on Facts to Include in the Brief

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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.

 

Creating the Statement of Facts on Appeal

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once upon a timeIn creating a Statement of the Facts, brief writers are generally limited to materials submitted to the trial court. Rule 208(b)(4), SCACR, requires that the brief contain references to material that are properly included in the Record on Appeal. And to be included, materials must first be submitted to the trial court.

Review is normally limited to the Record.  Rule 210(c, h), SCACR.

Outlining is helpful once the materials are gathered. A 1991 article authored by Rodger Townsend of Fulbright & Jaworski offers helpful tips on this point. He suggests beginning with the court reporter’s index and then noting the name of the witness and the type of examination; identifying where all the rulings were made; stating where the parties rested; identifying if the jury was present or absent; and then editing the abstract for content. Townsend, Brief Writing:  Advanced Techniques for Writing a Statement of Facts (1991).  

An outline must then be organized some way. Chief Justice Roberts explained how he outlined when he authored briefs, saying that he first outlined his thoughts and then spent days or more moving items in the outline around until it crystallized into the best fit. “I would spend a lot of time before I started writing on organization,” he explained. 13 Scribes Journal of Legal Writing (2010) at 14-15.

This has been described as the “madman” phase of writing. In this phase, one gets his or her thoughts down even if they are not fully formed. Bryan Garner suggests getting the thoughts down into a nonlinear, whirlybird outline with major and minor branches flowing from the center. It is only after the “madman” has run wild, he argues, can the “architect” come in an create a sound, linear structure. Garner, Legal Writing in Plain English (University of Chicago Press 2001) at 5-10.

Do you do something similar when you create your Statement of the Facts? Please let me know. You can leave a reply or reach me at www.attorneyroberthill.com.