Appellate Adventures, Chapter Seven: "Is the Statement of Facts Important?"

MOSKOVITZ ON APPEALS

Our story so far: Rising star trial lawyer Flash Feinberg had just lost a case. Judge Buller (aka the "Mad Bull") 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 Patty Plato (his erstwhile law school professor), 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, and how to draft the procedural facts section of the brief. [See prior Moskovitz on Appeals columns.]

Now it was time to write the "substantive facts" section.

"Is this important?" asked Flash.

"Important? It's the most significant part of the brief!" said Plato.

Flash said, "Really? I always thought the argument section would be the most important."

Plato explained. "Flash, let's say you just watched a feature film. Say it's Shakespeare's "King Richard III," with Laurence Olivier playing the title role. You cannot come away from that film without believing that Richard was the most evil, conniving sonofabitch ever to don a crown. And yet -- did you hear even a single line of argument? Did The Bard ever tell you that Richard was a bad guy? No. He just showed you the facts -- which included quite a few damning admissions from the King himself. That's all it took."

Plato added, "Of course, we lawyers live with a limitation that playwrights and TV writers don't have to worry about: We need to tell the truth, with citations to the record for every one of our 'facts.' But we can do that and still think strategically about how the way we tell our story can help win the case."

Flash thought for a moment. "I guess that's true of every story -- in movies, books, or anywhere else. The facts reek of justice or injustice, and that's all the viewer needs. But wait a minute! If the facts do the job, why do we even need the argument section of the brief?"

Plato replied, "A lawyer's goal is to win, not just to entertain and provoke. So you use the argument section to make sure you got your justice points across clearly. Also, an appellate court operates by a certain system. The appellate judges do not rule on each new set of facts on a blank slate of 'justice.' They need to fit it into 'the law,' which is already established, to show the public that they have only limited power, and are bound by statutes, rules, and precedent. Your argument section shows them how to do that."

Flash said, "Really? Law school taught me that judges just apply the law."

Plato gave him a reality check. "Think of it this way, Flash: your statement of facts makes them want to go your way, and your argument section shows them how to go your way. Once in a while you'll succeed on the first task but fail on the second and lose the appeal, but not as often as you think. Only rarely will an appellate court reach a result they feel is unjust, like when they're stuck with applying a statute they don't like. Usually, they can interpret a statute or distinguish (or even ignore) a case they don't want to apply."

Flash said, "OK, so my statement of substantive facts should be my story about how my client was treated unjustly. Kinda like the story I told in the trial court, right?"

Plato said, "Not quite. You're now in a different court, which has its own special way of looking at the facts. Appellate judges call it their 'standard of review'. Which standard of review applies depends on what kind of ruling you are challenging and what arguments you are making. And that standard controls which 'facts' you may present as 'facts.'"

"I don't get it. Spell it out for me."

"Say you lost at trial, and on appeal you argue that your opponent failed to prove some element of a claim or defense. The appellate court will apply the 'substantial evidence' standard of review. This means that they examine the record to see if 'substantial evidence' of that element was introduced at trial. If it was, they will affirm -- even if there was substantial (or even stronger) evidence showing that the element was not satisfied. So -- like it or not -- your statement of facts must state in detail the evidence supporting your opponent's claim. Later, in your argument section, you will show that this supporting evidence was so thin that it does not qualify as 'substantial.' A very tough argument to win, by the way. If that's your only argument for reversal, better think twice about whether to appeal."

Flash said, "My appeal arises challenges a summary judgment against me, not a trial verdict. Does that affect how I write the statement of facts?"

Plato replied, "Yes -- a lot. You're lucky on this one, because the standard of review happens to be very favorable to the party appealing a summary judgment. Here, the appellate court looks at the evidence in a light most favorable to the losing party, including all reasonable inferences from that evidence. So your statement facts can be drawn from your declarations, depositions, etc., and you can ignore the contrary evidence from the winner."

Plato added, "Here's a related tip. It's customary to discuss the standard of review only after the Statement of Facts, usually in the first section of the Argument. But I don't want the judge to wonder why my Statement of Facts reads so favorably to my side. She might think I'm doing what a lot of lawyers do: ignore the substantial evidence rule and simply tell their client's story. So often I tell her right up front: I lead my Statement of Facts with a short explanation of how the standard of review lets me to present these facts this way."

Flash said, "I thought the standard of review was just a short section you included at the beginning of your argument section and then forgot about. I didn't realize that it controlled how you write your statement of facts."

"You're learning, Flash. Next time, we'll talk more about how to write an effective statement of facts."