Appellate Adventures, Chapter Eight: “How Do I Turn the Facts into a Story?”

MOSKOVTIZ 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 former 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 draft the procedural facts section of the brief, and how to use the applicable standard of review to find which facts should be included in the substantive statement of facts. [See prior Moskovitz On Appeals columns.]

Flash said, "OK, now I understand that I can't just willy-nilly use any facts that help me. As you explained to me last time, the standard of appellate review dictates which facts I can use. But what do I do with those facts? Just lay them out, one by one?"

Plato said, "No. Raw facts tend to be boring, like a shopping list. If you don't make your statement of facts interesting, the judge might just skim them -- and wait to see your opponent's brief to read something livelier. So arrange the facts into a story. People love stories. Seems to be hard-wired into our subconscious -- probably during our thousands of pre-literate years when our ancestors listened to returning hunters and warriors tell their women, children, and elders the story of how they killed the bison or raided the neighboring tribe's camp that day."

Flash replied, "But sometimes the story is boring. I once had a case that involved some technical corporate issues. How can turn those facts into an interesting story?"

Plato explained, "Every lawsuit -- and every appeal -- is about a conflict between people. Conflict is the stuff of drama. The parties are fighting about something -- something important enough to spend a lot of money on litigation. People like to read about a fight -- just about any fight. So frame your statement of facts to tell a story about a fight."

Flash had an idea. "Hey, I saw a terrific flick last night. It had flashbacks and jump-aheads that made it really interesting. Maybe I could do that with my statement of facts."

Plato shook her head. "Know your limits, Flash. Until you get your Nobel Prize in Literature, don't get too fancy. Your audience is reading your brief for work, not for pleasure. They might be willing to struggle figuring out 'Ulysses,' but not an opening brief in Dropshot v. Topspin. A statement of facts story is best told chronologically -- even if it was not presented chronologically at trial."

Flash said, "Right. The trial lawyers might have taken witnesses out of order, or gotten just bits and pieces of the story from a witness while he was on the stand."

Plato replied, "So reorder the evidence chronologically. You might need to skip around the record and take bits of evidence from various parts of the transcripts."

Flash said, "I've seen briefs that just take each witness, one by one, and summarize his or her testimony. Does that work?"

Plato replied, "Usually it doesn't, as it forces the reader to do the work of going back and forth to create the story that uses that testimony - which might be all over the map chronologically. On a specific factual issue, however, using what more than one witness said might make the presentation more credible and powerful."

Plato said, "One more thing, Flash. Don't include argument in your statement of facts. Appellate justices expect you to save that for your argument section." Flash looked puzzled. "What's the matter, Flash?" asked Plato. Flash said, "Last time we met, you told me that I have to base my statement of facts on the record and the appropriate standard of review. But my opponent is stuck with the same record and the same standard of review. So if I can't embellish the facts with argument, won't my Statement of Facts read exactly the same as my opponent's?"

Plato said, "No. There are a number of ways you can argue without arguing. I'll get into these when we meet again in a couple of weeks."