Statment of facts--all in?
A reader asks:
Other opinions?
Is it appropriate to raise new facts in an argument section (with citation to the record) that you did not cite in the Statement of Facts? Sometimes, facts that I want to raise in the argument don't fit well within the Statement of Facts. They either make the Statement of Facts long and clumsy or just seem out of place / distract from the narrative but are useful in the context of the argument.I hope practitioners will chime in with comments, but I can tell you that the stock answer for my first-year brief-writing course is no. Don't mention a fact for the first time in the argument. Any fact you mention in the argument should have been mentioned first in the facts section.
Other opinions?
Wayne, I agree with you that no fact should appear for the first time in the argument section. I also think the converse is true -- that if a fact appears in the statement of facts it must reappear in the argument. Otherwise, it's just wasted words.
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It's sometimes appropriate to give an overview in the fact section, and bring out argument-specific facts in the fact section. It's important, however,to make clear to the court how you're organizing your brief, and why.
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Agreed- no fact important enough for argument should not be in your statement of facts. Careful readers will notice its absence.
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I disagree that all facts must be included in the argument section. Sometimes, a couple of background facts can help boost the reader's understanding, but they are not necessarily part of the core argument facts.
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I have had a number of disagreements with a colleague about this issue, who is quite the pedant about getting absolutely everything into the statement of facts, including things that clerks might just wonder about and want to know when composing their bench memos for judges. I agree generally that all facts relevant to the argument ought to be in the statement of facts. However, I have had a more experienced practitioner tell me that for the truly monumental appeals, you just sometimes don't get that luxury, and will have to cut a great deal and save some of it for the oral argument. I take the middle approach and put in everything factually relevant and sometimes mention a judge's musings (as opposed to holdings) for the first time in the argument section. I haven't gotten any negative feedback yet, though my experience in appellate courts is more limited than the two parties I mentioned above.
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The Statement of Facts is, in most cases, the most important part of the brief. A well done Statement of Facts should make it easy for the Judge to identify the law that supports a ruling in your favor.
Effectively marshaling and presenting the facts in that section will generally militate against introducing new facts in the argument section. But that can happen. The art of brief writing includes judgment about when that is appropriate because usually it is not.
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I must admit that my intuition on this point is not strong. But to add support to the your point, Aldisert in "Winning On Appeal" adopts Rule No. 1 of appellate lawyer Margaret McGaughey: "Don't use a fact in the argument portion of your brief that was not set forth in the statement of fact." Sec. 12.3.3
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I think it depends on the type of briefing you are doing. If it is an appellate brief, then yes, all facts should match up save maybe some background facts. My opinion changes in the context of dispositive motions practice at the trial level. When responding to a motion for summary judgment, I like my facts section to give the court an overview of the facts pertinent to the motion. However, once I enter the argument section, I often break down the general facts into more specific, detailed pieces.
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I think Daniel Barer has the right angle in the second comment, except I would argue that it is more than "sometimes" appropriate. As long as you tell the court how you are organizing and make proper record citations to support the facts you are bringing out in the argument, why not? The goal is to make the brief persuasive. If you can make it more so by providing less detail in the statement of facts while still providing enough to lead the reader into the argument, I say go for it!
That said, there are two caveats/pitfalls.
First, someone going over the brief a second or third time to confirm a fact he or she remembers reading may not look beyond the statement of facts to find it unless you follow Daniel Barer's suggestion to explain the organization of the brief to the reader in the statement of facts.
Second, a well-written statement of facts is subtly persuasive in itself, and you don't want to lessen its persuasion by leaving out compelling facts for the argument. So, while I think you can often leave some facts for the argument, the more important question to ask is, "Which ones?"
I'd say I probably do this mostly with quoted testimony or argument from the record. Sometimes, you need a block quotation to demonstrate your point . . . who wants to see the same block quotation twice in a brief? I usually quote it in full in one place, take highlights from it in the other.
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Just had an idea. Let's ask the guys that wrote the 58,922-word opening brief for Jeff Skilling? They might have had to leave something out of the statement of facts to keep the brief that "short."
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