Statement of Facts: Part VII

MOSKOVITZ ON APPEALS

This is the final installment of a series of seven columns on how to write an effective Statement of Facts. And it might be the most important one.

In prior columns, I suggested that the Statement of Facts might be the most persuasive part of the brief -- even more than the Argument. If the story you tell cries out for justice, it might persuade the judge before she even gets to your Argument.

How to Persuade in Your Statement of Facts

The Statement of Facts is not supposed to be overtly argumentative. It is meant to be like the opening statement at trial: merely state the facts and leave the argument for later. Nevertheless, there are ways to be somewhat persuasive in your Statement of Facts without being overtly argumentative.

You may include certain facts that are not technically relevant to the issue on appeal, but help with "the equities." If your appeal claims that a damages award was too high, but you do not contest the liability verdict, the appellate judge will nevertheless be interested in why your client was found liable. So state the facts in a way that diminishes your client's culpability, while keeping within the applicable standard of review. If the record doesn't permit you to do this effectively, it's probably better for your own credibility to concede that your client was a bad guy -- but is still entitled to just treatment when assessing damages.

Selective use of certain adjectives can add to the impact of certain facts. If the record is very thin in showing that your client was negligent, you might emphasize the paucity of evidence by saying: "The only facts indicating that appellant was negligent were...." But don't use adjectives like "overwhelming" or "obvious," which try to cram your beliefs down the judges' throats. They are not persuasive and just annoy the judges.

Avoid using the words spoken by a witness, where those words are unclear or ungrammatical. If Officer Boyd testified "I would of grabbed the perp if he run," do not write "Officer Boyd would of grabbed the perp if he run." Write, "Officer Boyd would have grabbed the defendant if he had tried to run away." If you fear that such a clean-up may sacrifice accuracy on some point of fact, then quote the witness, so the judge will not think that you don't know proper grammar and word usage.

In fact, short quotations from the record can sometimes have a more powerful impact than your paraphrasing. If the witness testified, "I think the light was red when he entered the intersection," this is much stronger and more dramatic than any paraphrase, even if you use almost exactly the same words. The judge expects the lawyer to "puff," but not to change the witness's own words.

You may briefly summarize a lengthy recitation of facts for emphasis: "Thus, when Officer Jones arrested appellant, Jones knew only that...."

"No Evidence" Is a Fact!

I once consulted on an appeal where our client was a bank that was sued for fraud. A borrower alleged that -- even though the loan documents clearly stated that the lien applied to the plaintiff's farm -- the bank's loan officer lied to him and said that the documents did not encumber the farm. The bank's lawyer had drafted the following Statement of Facts:

Plaintiff Smith testified that he did not read the loan documents, which expressly included his farm. He also testified that Defendant's loan officer, Ms. Money, told him that the documents imposed a lien only on his apartment building.

This was accurate, but I thought to myself, "How can I improve this Statement of Facts to make the plaintiff look worse? Not reading the loan documents makes the plaintiff look bad -- unless he had a good excuse. But if he had a good excuse, his lawyer would have presented evidence of that excuse. He didn't, so those excuses probably didn't happen."

This thought belongs in the Argument section of the brief, not in the Statement of Facts, so I can't say it out loud in the Statement of Facts. But maybe I use it this way:

Plaintiff Smith testified that Defendant's loan officer, Ms. Money, told him that the documents imposed a lien only on his apartment building, and Smith chose to rely on this alleged misstatement rather than read the documents for himself.

Smith testified that he did not bother to read the document creating the bank's lien, which stated in 12-point type that "the lien applies to Smith's apartment house and his farm." But there was no evidence that Smith had poor eyesight that prevented him from reading the document. And there was no evidence that Smith was unable to read the document because he was "illiterate. There was no evidence that the loan officer did not give Smith adequate time to read the document. There was no evidence that Smith was unable to retain counsel to help him understand the document. And there was no evidence that the loan officer told him not to read the document.

There is no explicit argument in this Statement. "Just the facts, Ma'am." But doesn't it deliver a message more powerful than the draft Statement I'd been given? I put this together by dreaming up every conceivable excuse that might have occurred -- and then writing that there was "no evidence" of that excuse.

Thus, the absence of evidence on a certain point is itself a fact. You can say that "There is no evidence in the record that the clothing worn by appellant at the time of arrest matched that of the robber -- as described by the victim -- in any way."

I once served on a panel with some retired appellate judges, and I asked them what they thought of this tactic. They were surprised. They'd never seen it before, but thought it could be effective. I asked if it violated any rule they knew of, written or unwritten. One Justice said, "Well, you're supposed to cite the record for every fact. How do you cite the record for the absence of evidence?" Good question. My answer: "I guess I should cite the entire record." They laughed, but none of them said I couldn't or shouldn't do it.

You might find this tip useful. But more important, it might inspire you to come up with your own creative tactics when writing your brief. If it doesn't break any rule but you believe it will help you win the case, do it.

Finish the Statement of Facts with a Punch

Sometimes I'll end my Statement of Facts with a quote from the trial court, showing -- in the court's own words -- why the court ruled against my client.

Suppose I'm appealing from a summary judgment. My Statement of Facts sets out the evidence in favor of my client's claims in the strongest possible way. But I then conclude with a quote from the trial court: The trial court's explanation re why that evidence fails to raise a triable issue of fact. If that explanation is weak or cursory, the effect can be dramatic. It's like reading "1+2+3 = seven"! No argument, just a jarring juxtaposition of facts and ruling.

"But that's not where the trial court's ruling belongs", you say. "It belongs in the Procedural Facts." Custom agrees with you, but no rule requires this. I obey the rules, but I follow custom only when it doesn't interfere with the persuasiveness of my briefs. In this situation, it interferes.