Some Factum Suggestions

Factum drafting is a creative enterprise and an artistic endeavour. For this reason, there is no single formula for writing good facta. Different approaches work in different situations.

This being said, good facta share common characteristics and adopt common approaches. In this note, I have tried to identify some. With regular practice and experience, you will find that these will become a regular part of your facta.

Please do not distribute this without the permission of the author.

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1. "Little things" are in fact big things. Getting the little detail right increases your credibility. Carelessness hurts your credibility. Clients pay lawyers plenty of money to get things done perfectly:

(a) no typographical errors -- Running the "spell check" program is no substitute for a careful proofread. To many trail council belief its fin, in principal, just to run a spell cheque programme.

(b) no grammatical errors.

(c) consistent formatting and usages -- if you indent your authorities, then always indent them; if you use italics for emphasis, then never use underlining; if you use an abbreviation like "para." in citations, then always use "para.", not "paragraph" or "parag."; if it's "Blair J." then always use "Blair J." and not "Mr. Justice Blair" or "Blair, J."; if you are using the S.C.R.'s for citations, never use D.L.R.'s for a Supreme Court case.

(d) perfect citations.

(e) appropriate citations: use the official reporters (F.C. and S.C.R.).

(f) scrupulously follow the formatting rules and requirements in applicable Rules of Court or administrative board rules. For example, do not assume that the requirements in the Superior Court of Justice are the requirements in Federal Court Trial Division or the Ontario Court of Justice or that the requirements in civil cases are the same as criminal cases.

2. Do anything possible to make the factum easy to read:

(a) Use plenty of spacing to create "white space".

(b) Use short sentences, twelve words or less. Use short paragraphs, 4 sentences or less. Each sentence should pick up on a word in the previous sentence.

(c) Use lists: e.g. "the relief should be granted because:... (1)...; (2)...; (3)...; etc.

(d) Use headings.

(e) Order the headings in a logical and persuasive order.

(f) Help the judges:

(i) Never use "supra", "infra", "above", or "below" in citations. Doing that forces them to flip elsewhere to find the citation. This can be frustrating for them, especially in long facta.

(ii) Give them the authority and where it is in your book of authorities or evidentiary Record (e.g. "Book of Authorities, Tab 1" or "Application Record, Tab 1").

(iii) Give them the page number of the authority you are relying upon. Make sure the relevant part is highlighted in your book of authorities.

(iv) Use illustrations (see Appendix 1), diagrams (see Appendix 2) or charts (see Appendix 3) if that will make the point better -- pictures are sometimes worth a thousand words.

(v) The full text of every provision mentioned in your factum must be in the back of your factum. All other provisions which might be helpful are also fully set out in the back of your factum. Simply listing the provisions in the back of your factum is useless.

(vi) Keep it short.

(vii) Use an index, particularly in longer facta.

(viii) Where jurisdiction to grant the relief sought is uncertain or the judge may not have encountered this sort of motion before, state what the jurisdiction is to grant the relief sought.

(ix) Say exactly what you want in the "Relief Sought" section of the factum. You should be able to cut the wording from this part of your factum and it is the exact text of the order or judgment to be issued and entered by the Court.

3. Be persuasive:

(a) Do everything above.

(b) Your objective always should be to convince judges that if they decide in your favour they will be legally correct and will have done the just thing. You want to appeal to the head and the heart. You want to capture the legal high ground and the moral high ground.

(c) Use "point first writing" -- in each section of your factum, say what your submission is and then build toward it, rather than building toward it and revealing the point at the end, like a mystery novel.

(d) Headings should persuade -- rather than "The Test for an Interlocutory Injunction", say "The Interlocutory Injunction Test is Met in This Case".

(e) Avoid words like "clearly", "absolutely", "it is obvious that", "egregiously", etc. They do not persuade. They jar and repel the reader.

(f) There is no need for formalism -- e.g. "this Honourable Court", "it is submitted that", "it is respectfully submitted that...". You might consider using the later sparingly, simply to flag a central submission.

(g) Sometimes understatement of a point after a well-structured discussion of the law or facts is devastatingly persuasive. Similarly, sometimes leaving it to a judge to make connections is better than making them for him/her.

(h) At key points of the factum, try to choose a "sound bite" or nice turn of phrase that will encapsulate your argument.

(i) Adopt a clear, confident, direct tone in your writing:

(i) Avoid the passive voice -- compare "The Plaintiff said that the union gave the Defendant the property," with "It was said by the Plaintiff that the Defendant was given the property by the union." The passive voice is longer, evasive (it hides the subject of the sentence) and less crisp and confident. Most factum-writers use tens of passives in every factum, which destroys the factum's persuasiveness.

(ii) Avoid nominalizations -- compare "The Plaintiff decided to propose further negotiations" with "The Plaintiff made a decision to send a proposal for further negotiations".

(iii) People seldom "indicate" things -- if they stated something, then say they stated something.

(iv) Eradicate "waffle words" and useless words from your writing: e.g."it appears that...". If it "appears", then just say it.

(v) Avoid legalisms and unnecessary phrases -- compare "The Plaintiff spoke about the proposed strike before the vote" with "The Plaintiff spoke with respect to the proposed strike prior to the vote".

(vi) Most of all, just get to the point. Avoid excessive verbiage. Structure your argument as if you are driving on a freeway, trying to get from "A to B" directly, simply and promptly. Don't take your reader on off-ramps or onto the "shoulders" or fringes of an argument. Just because your research may have led you on curves and into dead-ends does not mean that you have to take your reader through them.

4. Write a great introduction:

(a) At the beginning of your factum, in a succinct manner (e.g., 2-5 paragraphs), write what the case is about and why you should win.

(b) You should accomplish three things in a good introduction:

(i) start to convince the judge that if he/she decides in your favour, the judge will be legally correct;

(ii) start to convince the judge that if he/she decides in your favour, the judge will have done the right thing; and

(iii) provide the judge with a "roadmap", telling him/her what your factum is going to deal with.

(c) Do everything set out in sections 1, 2 or 3, above. Writing style and word choice is particularly important in an introduction. Sample introductions are provided in Appendix 4.

5. Write a great facts section. This is easily the toughest part of the factum to write. It is also the most important because most cases are won on the facts. Some tips:

(a) Assiduously develop the facts before the motion -- write correspondence to set up the case; get all the information and documents from your client by conducting great interviews; use other means to get information (3d parties, access to information legislation, records from other proceedings); write great affidavits; conduct great cross-examinations; etc.

(b) Never simply splice your client's affidavit into the facts section, making only a couple of minor changes -- this is a wasted opportunity.

(c) Use complete and accurate evidentiary references; cross-reference to the books that the judge is using, e.g. the motion record, application record, etc.

(d) Consider using great "quotable quotes" with the evidence references to capture the colour.

(e) Select and organize the facts: choose a theme and develop it like you would if you were writing a novel. You are trying to convince the judge that:

(i) the necessary factual elements for the relief sought are or are not there;

(ii) ruling in your client's favour is the just thing to do.

Therefore select and organize the facts in a manner which will best bring those points out. What facts are most persuasive and how are they most persuasively arranged? The answer to this can be the most time-consuming part of factum-writing.

On the issue of selecting the facts for the facts sections, facta are not pleadings. You are not obligated to set out every last fact which might conceivably be relevant. Instead, reproduce only those that further your argument or rebut the arguments against you (subject to (f)-(h) below).

On the issue of organizing the facts, organizing them in chronological order is sometimes, but not always, the most persuasive way of organizing them. Think creatively: are there other ways of organizing the facts which will make you look legally right and make your client's position look morally right?

(f) Remember that "the facts" can sometimes constitute more than what appears in the evidentiary record. Telling evidentiary gaps in the other side's case, factual concessions you have made can also be properly considered "facts".

(g) Be scrupulously honest with the facts. Never misstate or exaggerate the facts.

(h) In particular, do not evade or misstate relevance facts against your position. Instead, introduce them and deal with them at some point in the most favourable manner possible (e.g. by minimizing their relevance, putting the best light possible on them by explaining them, juxtaposing them with facts that are better for your client, juxtaposing them with facts that are bad for the other side).

(i) Sometimes a bit of law in the facts section (or in the introduction before the facts section) helps the judge place things in their proper context. For example, if your case involves a judicial review regarding whether a decision was within a particular statute, reproduce the section after you identify the section and flag what the jurisdictional problem is.

(j) Do everything set out above in sections 1, 2 and 3 (e.g.make use of headings, a good opening, introductory sentence after each heading, "point first writing", good writing style, etc.).

6. Write a great argument or "law" section:

(a) At all times, comprehensive and flawless legal research is necessary.

(b) You are not writing an academic paper. State why you should win in a practical way. If the legal test is clear, just state it in a paragraph. If there are conflicting lines of authority, identify them quickly and then make your reasons about why one line is better than another line in a succinct, clear way (perhaps simply listing the reasons as a series of bullets in a paragraph).

(c) Select and organize your arguments. Making eight arguments, only three of which have any force, detracts from your credibility. Make only the best arguments.

In organizing arguments, try to begin and end with the strongest. For example, if your arguments are ranked 1, 2, 3, 4 in strength, consider ordering them 1, 3, 4, 2. I often like to end a factum with a broad, compelling, positive reason why the relief should/should not be granted. However, sometimes arguments build on prior arguments and you will want to organize them in that manner.

If you are dealing with opposing arguments (whether you are a responding party or not), do so but only after you have set out your own version of the events, placing your "spin" on them. If you are a Respondent, do not adopt or "buy into" the Applicant's/Appellant's structure, characterizations, etc.You must affirmatively set out your story, using your structure, adopting your own characterizations.

In dealing with the opposing side's factum, make it clear what you are responding to. Rather than writing, "With respect to paragraph 52 of the Applicant's factum, the Respondent states that...", write "In paragraph 52, the Applicant incorrectly states that the Smith case is the governing authority." The former may cause the judge to go back to the Applicant's factum -- you want him/her to stay in your factum all of the time.

Finally, in dealing with the other side's arguments, just deal with the big stuff. You do not have to reply to every last little misstatement or mischaracterization.

(d) Don't cite four authorities where one will do; you want to convey the impression that the proposition you are supporting is a "slam dunk" in your favour, not something you have to agonize over. Put the other three in your briefcase in case you need them at court.

(e) You do not need authorities for everything. Some points are so obvious, you run the risk of insulting the judge if you cite any authority or too much authority. Give the judge, particularly appellate judges, some credit for knowing the law.

(f) Choose authorities wisely. Often the best authority is a lower court case which is close on your facts, rather than a Supreme Court case.

(g) Consider using great "quotable quotes" from the case law, but use them only if they are short. Also, you do not need to identify in your citation who the judge was who wrote a decision. However, if it is a particularly good judge who has credibility in the area, mention the name.

(h) Hone in and allocate your scarce space on the issues that matter, never evade them. Don't waste time on the issues that do not matter.

(i) No need to repeat things you've said before. Simply cross-reference other parts of your factum. For example, "As mentioned in paragraphs 52-54 above, the Applicant has delayed in bringing this Application."

(j) Be scrupulously honest in the use of authorities. Never misstate authorities, exaggerate what they say or ignore relevant and material authorities against your position.

(k) The "law" section of a factum is always an "argument" section. You should always apply the law to the facts. Do not worry about putting facts in this part of the factum or even introducing facts you have not already set out. Facts should be deployed where they are most persuasive.

(l) You have more to work with than just the facts and the law. Think of using analogies to make your point. As well, sometimes you can construct "strawmen" representing your client's case, and then rip it apart. All things being equal, analogies and the use of "strawmen" are most persuasive when deployed in oral argument. In jurisprudential cases (i.e. cases where the judge has to choose between conflicting lines of jurisprudence), what implications are there associated with your argument? The other side's argument? Be careful not to overargue, i.e. advance propositions that create dangerous implications which the judge will not want to accept.

(m) Do everything set out in sections 1, 2 and 3, above (e.g.make use of headings, a good opening, introductory sentence after each heading, "point first writing", good writing style, etc.).

7. Strategic considerations:

(a) What sort of proceeding are you in? For example, if you are seeking leave, you want to make the issues sound interesting, with wide significance. If you are resisting leave, you want to make the issues sound boring, with significance only to the particular parties.

(b) What are the limits on the jurisdiction of the court? For example, if on appeal, there is only very limited jurisdiction to alter the facts or adjust damages awards.

(c) In an appeal, is the appeal an "error correcting appeal" or a "jurisprudential appeal"? The former is likely to be dealt with by brief endorsement and your factum should be written knowing that the court will likely deal with the issue in that way (i.e., usually shorter). The latter requires more extensive discussion of authorities (i.e., usually longer).

(d) In an application for leave to appeal, what is the test for leave? It is a different test in different Courts at different stages.

(e) Are there factual, legal or procedural concessions you can make in your factum which will advance your argument and make your client look reasonable?

(f) Will there be oral submissions? if not, you might want your factum to be more detailed.

(g) How will the case be argued orally? Your factum should facilitate the oral argument.

8. Practical tips:

(a) Start writing the factum as soon as possible.

(b) Before you write, indeed before you assemble the facts, determine what you have to establish and how you are going to get there and, at a minimum do preliminary legal research to understand what will be the key issues upon which your particular matter will turn. If necessary, close your door and spend hours thinking about this.

Your approach as a practical factum-writer comprises two seemingly contradictory tasks. You must master the detail but at the same time to rise above it, to paint an accurate general picture for the judge and not to lose the judge in the detail. Many lawyers never master much of the detail and, in their facta, seldom are able to rise above what little detail they have mastered. They are not aware of the trees and aren't trying to describe the forest.

(c) Be cognizant of "colour". It wins cases. Always consider how you can affect "colour" through letter-writing, calling certain types of evidence, etc..

(d) Finish the factum early -- come back to it later with a fresh set of eyes.

(e) Edit, edit and edit. Then edit some more. And again for good measure. Your objective should be to persuade and to shorten (both are often the same thing).

(f) Use another colleague who knows nothing about the case to proofread and comment on it before it is filed.

(g) Follow the Rules closely. Some court desks will reject non-conforming or late material.

Appendix 5 -- Selected Bibliography

S. Armstrong and T. Terrell, Thinking Like a Writer: A Lawyer's Guide to Effective Writing and Editing (1992)

J.D. Arnup, "Advocacy" (1979), 13 L.S.U.S. Gazette 27

Michele M. Asprey, Plain Language for Lawyers (1991).

Robert W. Benson, "Plain English Comes to Court" (1986) 13 Litigation 21.

N. Birkett, "The Art of Advocacy" (1947), 25 Can. Bar Rev. 1043

Jordan B. Cherrick, "Issues, Facts and Appellate Strategy" (1990) 16 Litigation 15.

Continuing Legal Education Society of British Columbia, "Better Writing for Lawyers" (1985) (conference materials).

T.A. Cromwell (ed.), Preparation of Factums (1996)

J.W. Davis, "The Argument of an Appeal" (1940), 26 A.B.L.J. 895.

E.J. Devitt, "10 Tips for Preparing Better Briefs" (1986) 22:10 Trial 75

R. Dickerson, The Fundamentals of Legal Drafting (1965).

Donald C. Freeman, "The Grammar of Clarity" (1988) (unpublished conference paper)

Daniel M. Friedman, "Winning on Appeal" (1983) 9 Litigation 15.

Richard Hyland, "A Defence of Legal Writing" (1986), 134 U. Penn. L.R. 599.

L.P. Kaplan, "Writing that Persuades" (1984) 20:6 Trial 44

L.V. Katz and N.L. Felshman, "Lawyers' Language -- Some Suggestions for Incorporating Techniques of Advocacy into the Appellate Brief" (1983), 9 J. of Contemporary Law 127

Hon. Justice John I. Laskin, "A View From the Other Side: What I Would Have Done Differently if I Knew Then What I Know Now" (1998) 17 Advocates Soc. J. 16.

U. A. Lavery, "The Language of the Law" (1921), 7 A.B.J. 277, (1922), 8 A.B.J. 269.

Donald H. Layh, "Plain English: Increasing the Power of Our Writing" (1992), 56 Sask. L. Rev. 1.

Richard D. Lee, "Legal Opinions: Style, Structure and Organization" (1983) (unpublished conference paper)

K. Llewellyn, "A Lecture on Appellate Advocacy" (1962) 29 U. Chi. L. Rev. 627

Hon. Justice Beverley McLachlin, "Legal Writing: What Persuades?" (Speech to the Ontario Centre for Advocacy Training, November 14-15, 1997)

E. Meehan, "Supreme Court of Canada -- Process & Advocacy" (1996) 75 Can. Bar. Rev. 81.

D. Mellinkoff, The Language of the Law (1963)

Janice Mucalov, "Writing for a Judge: Forget Everything You Learned in Law School" (August/Sept., 1993) National 8.

Paul M. Perrell, "Written Advocacy" (1993) 27 L.S.U.C. Gazette 5

Paul M. Perrell, Written Advocacy (1995).

W. Probert, "Law and Persuasion: The Language Behaviour of Lawyers" (1959), 108 Univ. of Penn. L. Rev. 35.

M.B. Ray and J.J. Ramsfield, Legal Writing: Getting it Right and Getting it Written (1987)

Constance Rooke, A Grammar Booklet for Lawyers (1991).

H.B. Schermerhorn, "Cicero's Hints to Advocates" (1933), 19 Virginia Law Rev. 691.

William P. Statsky and R. John Wernet Jr., Case Analysis and Fundamentals of Legal Writing (1977)

W. Strunk, Jr. and E.B. White, The Elements of Style (3rd ed., 1979).

Albert Tate Jr., "The Art of Brief Writing: What a Judge Wants to Read" (1978) 4 Litigation 11.

J.M. Williams, Style -- Ten Lessons in Clarity and Grace (1981)

R. Wydick, Plain English for Lawyers (2d ed. 1985)