Some
Factum Suggestions
Justices David Stratas, Kathy
Feldman and Janet Simmons[*]
Appellants
Write for your
audience, not your client. You are writing a factum to
persuade your audience, the appellate judges.
You are not writing to please the person instructing you. The person or entity instructing you may want
to include something in your factum, but that is not necessarily what the
judges want or need; in fact, that inclusion could repel. As you write your factum, try to understand
and accommodate the needs, characteristics and perspectives of your audience,
the appellate judges.
Understand your
audience, the appellate judges. Appellate judges often have these needs, characteristics and perspectives:
● Judges need education about the appeal. When the judges pick up the appellant’s
factum, the judges may know little about the appeal. They may or may not have read the decision
below. Either way, they need to be
educated about the general facts of the appeal. Do that, near the beginning of the document,
and wherever else is necessary. A
handful of sentences may be enough.
● Judges need context before detail. Judges, like most readers, find it difficult to
understand and absorb a blizzard of detail when it is thrust upon them without
any context. State your point up front,
then support it with detail, and only the necessary detail. This form of exposition is often called “point
first” exposition. “Point first”
exposition should suffuse your factum: it should be your approach for the
organization of the factum as a whole, for each section in the factum and,
where possible, for each paragraph. A
variant of this, which can apply even at the sentence level, is to begin with a
concept that is concrete or familiar before introducing new detail.
● Judges as practical problem solvers. Many judges will ask themselves what the
practical problem in the appeal is, whether they can solve it (the standard of
review issue, discussed below), and how best to solve it. Judges are attracted
by simple solutions that do not create implications. When you have a simple argument and a
complicated argument, both of which lead to the same practical result, normally
you should favour the simple argument. In deciding between a narrow argument that
affects only the parties in the case and a broad, implications-laden argument, normally
you should choose a narrow argument that accomplishes the objectives of the
person or entity instructing you.
● Judges as critical, cautious readers. Judges are aware that they are receiving
submissions from parties who have a strong interest in the outcome. For that reason, they read submissions very
critically and cautiously. They tend to
have more confidence in, and be persuaded by, objectively-expressed statements,
verified by accurate citations, that point to instantly accessible materials. They tend to be cautious about general, vague,
unverifiable statements. Overstatements,
exaggerations, and inaccuracies – even just a few – confirm to judges that they
were right to be critical and cautious, reducing the persuasive value of the
factum to naught.
·
Judges as dispensers of justice. Judges strive
to achieve just results. Always look at
the case from this perspective and ask yourself what arguments, either for or
against you, are likely to engage the judges’ sense of justice.
Most of the
suggestions, below, are practical ways by which you can accommodate these
needs, characteristics and perspectives.
Distil and synthesize.
Your job is to distil the information in the case and synthesize it down
to its essence. You are not writing an
encyclopaedia, with every last detail memorialized. Nor are you writing a history of the case,
with all of its twists and turns.
Instead, try to write a helpful instruction manual, selecting only the
detail that is necessary.
Select. To select only the detail that is necessary, you
must first decide what facts and arguments you need to include. Work backwards and ask two basic questions:
● Question 1: what relief are you seeking?
● Question 2 (two parts that ideally should be combined into
one): (A) why should you get the relief and (B) why should the decision below
be overturned?
As a
general rule, everything else should be dropped. (But see “Candour,” below.)
It’s an appeal.
There is a judgment below. There
is a standard of review that must be applied. This affects the answers to the two questions,
particularly the second question. Unless
you can show palpable and overriding error, you are stuck with the factual
findings and the discretionary rulings made below. Therefore, you should focus on fundamental
issues, such as errors of law or significant misapprehensions of principle, always
bearing in mind the judges’ desire to do justice between the parties.
Edit your arguments. Even after you have engaged in selection bearing in mind the standard of review, you may still have ten different arguments why the decision should be overturned. You should now edit. Arrange the arguments from strongest to weakest. If number one has failed, might number two win the appeal? Perhaps. If number one and number two have failed, might number three win the appeal? Maybe. If number one and number two and number three have failed, might number four win the appeal? Probably not. Running too many arguments gives appellate judges the feeling that the lawyer is throwing mud indiscriminately against the wall to see what sticks. This undercuts the credibility of the case. Another way of thinking about this is to recall that most cases really turn on only one or two critical issues or controlling ideas. The ratio of a case is only a sentence or two long, at best. Your job is to identify the controlling idea or hard issue in the appeal, or a couple of controlling ideas or hard issues, and then to develop them.
Do argue. Factums should not be a collection of facts
and academic propositions of law. Appeal
courts want submissions regarding how the law should be applied to facts:
argument is appreciated.
Structuring the argument. Law has its own structure. Usually there is a common law test or
statutory recipe to follow. Often that
can be the best structure for the argument section of your factum. However, sometimes you do not need to set out
the whole test or the statutory recipe. Sometimes
you can simply address the particular errors of law or misapprehensions of
fundamental principle.
Structuring the facts. Facts have no logical structure. You have to impose a structure on them. What structure? It depends on what is important in your case
(see “The facts matter,” below). Where
chronology matters, chronological order might work best. Where, however, your objective is to
show that you satisfy the various elements in a legal test, a thematic approach
will probably work best. For example, at trial in a
negligence case, you might group the facts under headings such as “brief
background,” “the event,” “duty of care: the damage was foreseeable,” “standard
of care: the negligent conduct,” “damage was caused,” and “the damages claim.” Of course, your structure may be different in
an appeal depending on what the trial judge did. If you are focusing on particular errors of
law or misapprehensions of fundamental principle, you need only set out basic
facts to orient the judge and then select only those facts necessary to show the
particular errors of law or misapprehensions of fundamental principle.
Using headings. As mentioned above, judges need context before
detail or, put another way, point first exposition. Headings are key to this. While they are useful throughout your factum,
they are especially useful in the facts section. By providing structure over the facts, acting
as guideposts, and sending signals, they help to educate the judges about the facts
and their significance to your case.
Deploy the facts once,
when they matter. Sometimes it makes sense to deploy certain
facts for the first time in your argument section. For example, in a negligence
appeal, if the judge erred on whether the appellant met the standard of care, the
facts relevant to this issue may be deployed for the first time in your
discussion of the standard of care in the law or argument section of a
factum. Avoid setting out certain facts
in the facts section and then force the judge to read the exact same facts in
the argument section. Instead, consider where the facts will be most
effective in your factum, and deploy them only where they will have the most
impact.
Just the facts. Clinically and objectively expressed detail,
arranged in a persuasive way, persuades.
Adjectives and statements of opinion about the facts do not
persuade. Overstatement repels and annoys.
The facts matter.
Yes, you should be concentrating on errors of law or misapprehensions of
fundamental legal principle. But the
facts still matter – sometimes a great deal.
Remember that appeal courts often have some discretion as to the proper
principles to be applied and how they apply in your case. The facts can influence the exercise of discretion.
The facts tend to highlight the justice
of your case, or the lack of justice in your opponent’s case. Spend time selecting and arranging the facts,
and expressing them in a persuasive way.
Brevity.
If you have engaged in selection in a rigorous way, your factum will be
brief. This is good. Brief factums are much more persuasive. The ideas in them tend to stick with the
judge and register an impact. Long,
diffuse factums are not readily absorbed or remembered, and have less
persuasive effect.
Candour. You may have selected only the facts and law
that are necessary to set up your submissions on appeal. But there may be facts and law that you know
will hurt your submissions. Acknowledge
this. Deal with the facts and law
against you before your opponent deals with them – or worse, before the judge
notes your omission and wonders about your credibility!
The overview. The overview or introduction at the start of
the factum makes a first impression. Take
care to write it well. The overview is
not a multi-page summary or headnote of the entire case. Nor is it a place to recite detailed facts
that will be read again later. Instead,
an overview should only be a brief orientation for the judges who know little or nothing about the
case or your position on it, and it should begin the task of persuading
them. Specifically, an overview should
identify the controlling ideas or hard issues, explain why they matter and
begin to explain why they should be resolved in your favour. Ideally, this should be done in only a
paragraph or two.
Small things matter.
Critical, cautious appellate judges can be reassured and comforted by
correct, pinpoint citations that point to specific passages in documents in the
record or the books of authorities. This
technique can be enhanced by hyperlinks to the references for those who will
read the factum on-line. If a legal
proposition is trite, you should present it as such: include only one leading
case at most. Citing seven cases
communicates to the judge that your case is difficult and complex, when in fact
it is not. Formatting errors and
typographical errors matter: critical, cautious judges worry that a lawyer who
cannot spell properly may not have set out the facts and the law accurately
Schedules matter. You should include the full text of all relevant legislation in the
schedule to your factum, not just the name and citation of the Act or
regulation. In this context, you should
include all provisions to which you refer in your factum, all provisions that
your opponent will be referring to, any provisions that may be mentioned in
oral argument, and any provisions that might give the judge some general
context that may assist in understanding the legislative scheme. In some instances, this means that you may
decide to include an entire Part of an Act, or even more. If your schedule is long, pagination of the
schedule and an index at the start of the schedule is helpful.
Remedies matter. If the appeal is allowed, the appellate court
will often render the judgment that should have been rendered. So what is the judgment that should be
rendered, and why?
Writing quality really
matters. A factum comprised of sentences is like a
wall comprised of bricks. If the bricks
are bad and are not cemented together properly, the wall will be ugly, off-putting
and weak. Sentences that are clear, direct and confident persuade. Sentences that connect firmly and logically
with each other persuade. Sentences collected into a short paragraph that
expresses a discrete concept persuade. Paragraphs
combined in logical order into a section introduced by a heading persuade. Here are some suggestions about sentences,
paragraphs and sections:
● Sentences. Try to make
your sentences clear, direct and confident by following these rules:
(1) Unless
there is good reason, use the active voice. (“I hit the ball,” rather than “The
ball was hit by me.”) The active voice
is direct and short. In the passive voice, who did the hitting is slipped in as
an after-thought, creating an evasive tone.
It is potentially a distraction for the reader who is left in suspense
until the end of the sentence about who did the hitting.
(2) Use
one word where you can; using strong verbs is one solution. (“She decided to
value the shares at $50,000” or, even better, “She valued the shares at
$50,000” rather than “She made a decision to set the value of the shares at
$50,000.”).
(3) Where
possible, restrict your sentences to one idea. (The sentence “The book, 258
pages in length and authored by Bob Smith, was read by Phyllis” could be broken
into two very digestible sentences: “Bob Smith wrote a 258 page book. Phyllis
read it.”)
(4) Try
to connect sentences firmly to each other.
Each sentence should pick up on an idea in the previous sentence. Repeating an exact word or concept in
the previous sentence can build a strong link: “Mary picked up the book.
The book was called X.” Avoid
using different words and concepts, even just slightly different words and
concepts, in the second sentence: “Mary picked up the book. The novel was called X.” The slight shift from “book” to “novel”
creates a certain lack of certainty and might create momentary confusion in the
reader (“is this novel the same as the book?”).
Of course, lack of certainty and confusion is precisely what you do not
want to foster in readers you are trying to persuade. Finally, remember that transitional words and
phrases such as “therefore,” “thus,” “in addition,” “but,” “instead,” and
“however” can help to guide readers, helping them to move quickly and uncritically
from sentence to sentence.
● Paragraphs. Each
paragraph should have one, and only one, discrete idea. Here, you might try to
emulate newspaper journalists who write short, modest paragraphs. This achieves clarity and creates plenty of
white space, which readers welcome.
● Sections. Arrange the
paragraphs that develop a particular proposition or submission into a section. The paragraphs should be logically arranged
for maximum persuasive effect. Make sure
you say at the outset what proposition or submission you are developing in the
section (the “point first” method of exposition, mentioned above). A heading at
the beginning of the section also helps the judges understand the proposition
or submission that you are making, and adds to their confidence in it. You should arrange the sections either in
terms of necessary order (e.g. a
proposition or submission can be advanced only after something else has been
established first) or in terms of strength.
On the issue of strength, remember that the strongest submission may be
the least ambitious, most “boring” one: i.e.
the one that provides the court with the simplest, shortest, most routine, most
direct route to the result you want.
Respondents
Most
of the points above also pertain to the respondent’s factum. However, the respondent has other things to
consider.
Avoid repeating what
the appellant has said.
If the
appellant has set out the facts and they are broadly acceptable, say so, and
then stop. Do not repeat. If the appellant has set out the facts but
given them an unfair spin, identify the unfairness and object to it. It may be very helpful to set out the facts
in a manner that emphasizes the respondent’s point of view. You may try to do
this, but do not just repeat the basically the same facts the appellant set
out, with your spin.
Be direct. If the appellant is wrong on an important fact
or legal proposition, say so, directly and clinically, without aggression or
sarcasm, with supporting reasons and references. Don’t beat around the bush.
You may choose your
own structure. Whenever possible, set out your response to
the appellant’s points in the same order as the appellant set them out, taking
on their submissions one by one. This
may cause you to adopt the headings and structure in the appellant’s
factum. However, you are not bound to do
so. Particularly where the appellant’s
factum takes a scattergun approach or is unclear, it is often helpful to recast
the appellant’s grounds of appeal in a more understandable way and to use your
own headings and structure. Just make
sure that you are responding to the appellant’s points and that the judge knows
exactly where in your factum to find your response to the appellant’s points.
The court below.
You won in the court below.
Exploit that. To the extent you
can, embrace the reasons below, highlighting the standard of review. Identify those portions of the reasons that
did justice between the parties. Where
the reasons are debatable or shaky, bolster them with reference to the record
and case law. Also consider exploring other
reasons, not mentioned by the court below, that support the judgment you wish
to maintain.
Suggestions for
further reading
Writing instruction:
Stephen V.
Armstrong and Timothy P. Terrell, Thinking
Like a Writer: A Lawyer’s Guide to Effective Writing and Editing (Thomson
Legal Publishing, 1992)
Joseph M.
Williams, Style: Ten Lessons in Clarity
and Grace, 3d ed. (Harper Collins, 1989)
Stephen
Wilbers, Keys to Great Writing
(Writer’s Digest Books, 2000)
Michele M.
Asprey, Plain Language for Lawyers (Federation
Press, 1991)
Steven D.
Stark, Writing to Win: The Legal Writer
(Broadway Books, 1999)
Bryan A.
Garner, The Elements of Legal Style,
2d ed. (
William Strunk Jr. and E.B. White, The Elements of Style, 4th ed. (Pearson Education, 2000)
Constance Hale, Sin and Syntax: How To Craft Wickedly Effective Prose (Random House, 1999) and Arthur Plotnik, Spunk and Bite (Random House, 2009) (advanced instruction on how to emphasize certain ideas through the use of structures such as parallelism, chiasmus, sentence cadence, varying sentence length)
Usage:
Margery Fee and Janice McAlpine,
R.W. Burchfield, Fowler’s Modern English Usage, 3d ed. (Oxford University Press, 2000)
Bryan A. Garner, Garner’s Modern American Usage 3d ed. (Oxford University Press, 2009)
Factums:
Hon. Justice Thomas Cromwell, Effective Written Advocacy, 2d ed. (
Bryan A. Garner, The Winning Brief: 100 Tips For Persuasive Briefing in Trial and Appellate Courts (Oxford University Press, 1999)
[*] Justices Feldman and Simmons are
Justices of the Court of Appeal for