Appellate Adventures, Chapter 11: “Any More Tips on Drafting a Statement of Facts?”

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, "Professor, you given me some terrific ideas on how to back up my factual statements with record citations, how to make my statement of facts clear to someone who doesn't already know the case well, and the like. Any more tips?"

Plato replied, "Yes, a few:

• "Construct your brief as an integrated whole, with each part supporting each other part. So your Statement of Facts should be carefully created to support your Argument. Facts that don't advance this goal should usually be omitted.

• "Use the names of the people and organizations involved in your Statement of Facts. Calling them 'appellant,' 'respondent,' 'intervenors,' and 'real parties in interest' makes for difficult (and boring) reading. The judge may forget who is who and have to go back to the title page to check it out. And real names tend to 'humanize' the case and make the Statement of Facts more interesting.

• "Keep your Statement of Facts concise. Don't clutter it up with facts that serve no purpose. For example, resist the temptation to include specific dates of events unless they matter. You can still keep the story chronological, by saying 'the next day' instead of the usual 'on or about January 25, 2015.'

• "But don't frustrate the judge by leaving questions unanswered, even if the answers are irrelevant to the appeal. I once consulted on an appeal from the denial of a motion for attorney fees. While the amount of the attorney fees was not relevant to the issue on appeal (which was whether any attorney fees should have been awarded), I was naturally curious: How much? Put yourself in the shoes of the Decider. Wouldn't you be curious about what is at stake in the appeal, and perhaps curious about whether the appellant made a reasonable request? Tell them.

• "If your Statement of Facts will be long -- more than five pages or so -- dividing it into sections will make it more readable. For example, divide it into distinct groups of events that occurred chronologically, e.g., 'The New York meeting' and 'The Boston meeting.'"

Flash said, "I think I get it. At the outset, the reader knows nothing about what happened. Following these tips will make the Statement of Facts clear and readable to someone who knows as little as I did when I first got involved in this case. Any other ideas for helping the reader get up to speed quickly and easily?"

Plato responded, "Yes, be creative. Think of new ways to help the reader understand the facts clearly. Make sure your idea doesn't violate any Rule of Court. If not, do it.

"For example, sometimes your Statement of Facts will be unusually long -- unavoidably, because the case is so complex. Consider starting it with a short one-paragraph 'Overview' that summarizes the facts. Like this: 'This case involves a claim that a corporation's executive stole trade secrets from the corporation and sold them to a rival company....' Makes it much easier for the reader to understand the relevance of each fact. And no Rule of Court forbids this.

"Here's another example of creative thinking to help the reader: visual aids. Visuals can add clarity to your Statement of Facts. If the trial court record includes an exhibit that illustrates some significant aspect of the case, scan it into your Statement of Facts. Sometimes I'll put it as an 'attachment' at the end of the brief, but sometimes I'll scan it right into the middle of the brief itself.

"Where an appeal hinges on the language of a contract, most briefs simply quote or paraphrase the language. Sometimes I do this too, but other times I find it more effective (and dramatic) to scan that part of the contract directly into the brief. Not the whole contract -- that would take too much space. Just the key paragraphs -- with the same font, etc. -- seen as the parties actually saw it. Here, you might want to insert the key language of Debbie's contract with Topspin into your brief.

"If the case involves a property line dispute, a verbal description of the property can be hard for the reader to imagine. So scan into the brief an exhibit that diagrams where the parcels lie.

"A traffic accident case will usually include a drawing or photograph of the intersection where the collision occurred. If the exhibit was admitted into evidence, scan it into your brief. This will make it easier for the judges to absorb the facts quickly, and they will appreciate it. Make sure the illustration is clear, large enough to see the details, and not too complex.

"But what if the trial exhibits are not that clear? I've had cases where the trial exhibits were simply too complicated, needing the guidance of an expert witness to be understood. I found it easier to prepare my own simpler sketch, then hire a graphic artist to make it more presentable. I then place the illustration in the appropriate part of my Statement of Facts (or as an attachment at the end of the brief). To avoid any objection, I follow the sketch with a statement: 'This sketch was not a trial exhibit. It is clearer than the trial exhibits. We prepared it for this brief, solely for illustration, to help this Court follow the discussion in our brief. It is based on the following trial exhibits and testimony: * * * * It is not drawn to scale and does not include all features of the exhibits on which it was based.' If your opponent moves to strike your illustration because the Rules of Court don't mention such additions, cite Eisenberg, Horvitz, & Weiner, California Practice Guide, Civil Appeals & Writs, ¶9.170 (Rutter Group): "It might also be helpful to include in an appendix expository material that might facilitate the court's understanding of important points in the brief -- e.g., charts, graphs or diagrams illustrating evidentiary matters, or a chronology of factual or procedural events where the facts or lower court proceedings are unusually complex."

"Thanks, Professor. I guess that just about tells me everything I need to know about how to draft the Statement of Facts."

"Not quite, Flash. We need one more lesson. On how write a Statement of Facts that persuades. You're not supposed to argue in your Statement of Facts, but sometimes you can do something covertly that you're not supposed to do overtly.

Next time...." 