Appellate Adventures, Chapter Five: "Which Facts?"

MOSKOVITZ ON APPEALS

The setting: Rising star trial lawyer Flash Feinberg had just lost a case. Judge Buller (aka the "Mad Bull") had just granted summary judgment against Flash, rejecting Flash's claim that Topspin Tennis Club had breached its contract with Flash's client (tennis pro Debbie Dropshot) by firing her for flunking a drug test at a tennis tournament.

With the guiding hand of his former law school professor, Patty Plato, Flash had weighed the likely costs and benefits of appealing the Bull's ruling -- and decided to go ahead. So he filed his notice of appeal and his designation of record, then drafted an outline of his opening brief. [See prior Moskovitz On Appeals columns.]

Now it was time to write his statement of facts.

"So where do I start?" asked Flash.

Plato responded, "Always start everything you do in an appeal with The Golden Rule of Appellate Advocacy."

Flash said, "Appellate lawyers have their own Golden Rule? Like the one we learned in Sunday School?"

"It's similar," said Plato. "It goes like this: Put yourself in the shoes of the appellate judge."

"How does that apply to the statement of facts?" asked Flash.

"Well, if I were an appellate judge, I'd hope to see two types of facts: procedural and substantive. 'Procedural' means a brief description of what happened in the trial court, from the filing of the complaint to the filing of the notice of appeal. 'Substantive' means what happened in the real world, i.e., the events that led the Tennis Club to fire Debbie. It's better to put the procedural facts first, because they are usually shorter, they tell the appellate judge where you got the substantive facts -- e.g., from the complaint, if a demurrer was sustained without leave to amend, or from evidence presented at trial, if you are appealing the denial of a motion for JNOV). Also, a persuasive statement of real world facts can set up what comes next -- the argument section -- quite well."

"So I should have one section with the heading 'Procedural Facts', followed by another section called 'Substantive Facts', right?"

"Yes, though the appellate judges are used to seeing 'Statement of the Case' (for the procedural facts) and 'Statement of Facts' (for the substantive facts). Unless you have a good reason to do something different, it's generally best to give them what they are used to."

"Anything else I should know?"

"Yes. Let's get back to the Golden Rule. The appellate judge sees herself as having a very limited role. She does not retry cases. She looks for only one thing: Did the trial court commit an error that is serious enough to warrant reversal? Trial courts commit error based on what is in front of them, not other stuff. So the appellate judge will base her decision only on what is in the trial court record. She will not consider any 'evidence' not in that record (with rare exceptions for 'judicially noticed' evidence). It would be a serious mistake for you to cite such evidence in your statement of facts."

"Thanks for the warning. I know what happened after the case ended in the trial court, and I later found out some juicy dirt on Debbie's accusers. But I guess I can't use it in the appeal."

"Right. And there's another consequence of the rule that the appeal must be based on the record: You must cite the record for every fact you include in your procedural facts or substantive facts."

"What part of the record?"

"That depends. Testimony at trial appears in the reporter's transcript. Cite that by page number and line numbers. So if a witness so testified at page 987, lines 4-5, of the reporter's transcript that the defendant drove through a red light, write, 'Smith drove through the red light. RT 987:4-5.' That allows the appellate judge to go straight to the exact, right place to check to see if your statement 'Smith drove through the red light' is supported by the record. And believe me, she will -- especially if this is important or contested. And don't forget your opponent. He'll check every one of your citations and nail you if you overstate the record, for example, if the witness actually said, 'I think he might have just barely entered the intersection just before the light turned red, but I'm not sure.'"

"We didn't have a trial," said, Flash, "just a hearing on Topspin's motion for summary judgment." Plato replied, "So the substantive facts will come from the documents submitted in support and in opposition to that motion -- declarations, deposition transcripts, etc. Those will most likely appear in the clerk's transcript, or in documents you've included in the appellant's appendix you will prepare."

"What about the procedural facts?" asked Flash.

"Procedural facts are also most likely be found in the clerk's transcript or in the appellant's appendix. Sometimes in your substantive facts you'll want to cite documents (such as contracts) that were introduced as exhibits at trial or in summary judgment papers. Make sure you've included those in the clerk's transcript or appellant's appendix."

"Can I get my facts from any part of the record?"

"No. Arguments of counsel are not 'facts'. Facts come only from witnesses and exhibits the court has accepted into evidence."

Flash said, "Earlier, Professor, you said that a statement of facts can be 'persuasive'. How can I make that happen? You said all facts have to come from the record, so I can't make any up or use evidence not in the record."

"Tune in to our next lesson, Flash."