Appellate Adventures, Chapter Six: "How Do I Write the 'Procedural Facts'?"

MOSKOVTIZ ON APPEALS

Our story so far: 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. Plato advised him how to set up his statement of facts. [See prior Moskovitz On Appeals columns.]

"Professor, you said to break the statement of facts into two sections: the first on the procedural facts and the second on the substantive facts. In the section on procedural facts, do I include everything that happened in the trial court?"

Plato replied, "Remember, Flash, we answer every question about appeals by starting with the Golden Rule of Appellate Advocacy, right?"

"Right," said Flash. "Put yourself in the shoes of the appellate judge."

"Appellate judges are very busy, with a lot of appeals and writ petitions to deal with. They don't want to waste time reading stuff that isn't relevant to their job: deciding whether to reverse or affirm. So if you were the appellate judge, what procedural facts would you want to know?"

"Just the facts that bear on the arguments I'm making for reversal, I guess."

"Good. So don't include the sort of thing I often see in briefs, such as 'The trial court continued the hearing on its own motion for two weeks'. That sort of thing rarely has anything to do with the issues on appeal, so leave it out."

"Only the essential stuff, correct?" asked Flash.

"Not quite. There's a few other things the appellate judge might be curious about -- like how old the case is. So tell him when the original complaint was filed. And he (or his research assistant) wants to make sure that the appellate court has jurisdiction, which turns on whether the notice of appeal was filed on time. So be sure to include the date of the judgment and the date the notice of appeal was filed. But don't include the dates of the other events unless they matter. Lawyers love dates, but including too many of them just clutters up the brief and distracts the reader. Since you'll have a cite to the record after each event, the judge can find a date if she needs it."

"What else might they want to see?"

Plato said, "The location of briefs, declarations, and the like. If the appeal challenges a summary judgment, the court will want to see the motion for summary judgment with its supporting declarations. Same with the opposition, and same with the reply. Just write: 'Respondent filed its motion for summary judgment, with supporting declarations. See Appellant's Appendix (AA) 54-70. Appellant filed his opposition, with supporting declarations. See AA 70-90. And Respondent filed its reply brief. See AA 91-98."

"Any other ideas?"

"Make it readable. Tell the procedural story chronologically -- starting with the original complaint, ending with the notice of appeal, and in between summarizing the other relevant events in the order they occurred. And keep it clear and concise."

"Professor, you said earlier that I could make my statement of facts persuasive. I don't get it. I thought persuasion is for the argument section of the brief, and the statement of facts just sets out the raw facts. And you said every fact I state has to be supported by a citation to the trial court record, so I'm stuck with those."

"Right," said Plato. "Appellate judges don't want to see overt argument in the statement of facts, so don't editorialize in them, with statements like 'The trial court found for the Tennis Club, but its ruling was clearly erroneous, because....' But there are ways to persuade in your statement of facts."

"Even in the section on procedural facts? Isn't that pretty dry stuff?"

"Usually, but it does present opportunities sometimes -- especially where you plan to raise some procedural issue in your argument section. That's true in your appeal, because you plan to argue that the trial court should not have denied your request to continue the hearing on the motion for summary judgment to give you time to get a declaration from your expert witness saying that the tennis association's drug test was flawed. This one is tricky, because telling that story in the section on procedural facts might be too early. If that story comes before the substantive facts, it might not be clear enough, or might not have enough impact. I would consider either (1) including it towards the end of a single section called "statement of the case," that includes both the procedural and substantive facts, or (2) not putting the complete story in either the procedural facts or the substantive facts, and instead saving it for the beginning of a separate section of the brief. The rules require you to have a statement of facts, but they don't tell you where to put the facts or how to break them up. So be creative. Do what works best. Maybe write it a couple of different ways and see which way looks better."

"Thanks, Professor. Any other ideas?"

"Well, here are a few more possible ways to persuade in your procedural facts:

• Summarize the "operative" complaint -- the one that was the basis for the summary judgment, trial, or whatever else you are challenging in the appeal. That gives the appellate judges a preview of your statement of facts, and enables you to summarize the facts that show the justice of your cause.

• If trial counsel presented an eloquent argument on an issue you will be arguing, maybe quote him -- if it's short.

• See if there is a way to juxtapose two procedural facts, where this might demonstrate the injustice of the trial court's ruling -- even without any overt argument. For example, "Plaintiff requested a two-day continuance of the hearing, based on declarations showing that his counsel's baby daughter had just sustained a life-threatening injury requiring emergency surgery. Without stating a reason, the trial court denied the request, so Plaintiff's counsel was forced to miss the hearing, leaving Plaintiff unrepresented at the hearing." With facts like these, you don't really need to add much argument.

"OK. So how do I write the section on the substantive facts, Professor?"

"That's for next time, Flash."