Factum precedents:

Mr. Brown, counsel for the plaintiff, has drafted a factum. It is really bad. Here it is.

In this factum, the plaintiff seeks a higher-than-normal award of costs at the end of the proceding because of the bad conduct of the defendant.

For those of you who have not yet taken civil procedure and, in particular, the law of costs, do not fret. The law of costs is not difficult, and judges, like the trial judge in this case, are very familiar with this law. In addition, this note and Mr. Brown's factum gives plenty of background. “Costs” is a sum of money that is awarded at the end of trial. It is designed to compensate a party for legal fees and disbursements incurred during the course of the action. The judge’s discretion is governed by Rule 57 of the Rules of Civil Procedure, R.R.O. 1990, c. C.43, as amended. As you will see from Mr. Brown’s draft factum, costs in the Ontario S.C.J. -- a sum of money -- are usually awarded to the winner of the litigation, and are on two scales, substantial indemnity (a higher level of compensation) or partial indemnity (a lower level of compensation). These terms are explained more fully in Mr. Brown’s draft factum.

Here is the background leading up to the submissions on costs.

A trial of an action took place. The plaintiff sued the defendant for breach of contract. The trial judge released her reasons for judgment. She found for the plaintiff, awarding him compensatory damages and punitive damages.

The trial judge asked the parties to file a brief factum on the issue of costs. Mr. Brown’s factum will be the first factum on costs to be filed. The defendant will respond later.

Mr. Brown, counsel for the plaintiff, tried to a draft factum. It’s horrible.

In the Jan.-Feb. 2012 Written Advocacy class, the students were asked to redraft Mr. Brown's factum. Steve Taylor, now in third year, prepared the best one. Here it is. Thanks to Steve for allowing me to make this available to you. And congratulations, again, to him for submitting the best redraft of Mr. Brown's factum.

Notice any difference between the bad factum and the good factum? :-)

Articles available online:

Hon. John Laskin, "Forget the Windup and Make the Pitch: Some suggestions for writing more persuasive factums" -- available here

Hon. David Stratas, Hon, Kathy Feldman and Hon. Janet Simmons, "Some Factum Suggestions" -- available here

Hon. David Stratas, "The Basics of Factum Writing" - available here

Hon. David Stratas, "Writing up the facts and winning big: Some secrets of the best writers of legal submissions" - available here

Hon. David Stratas, "Walking on Thin Ice: Exploiting Strengths and Managing Weaknesses" - available here

Writing instruction - the classics:

Stephen V. Armstrong and Timothy P. Terrell, Thinking Like a Writer: A Lawyer's Guide to Effective Writing and Editing 3d ed (Thomson Legal Publishing, 2009) - buy from amazon.ca - buy from Chapters/Indigo

Joseph M. Williams, Style: Ten Lessons in Clarity and Grace, 10th ed (Harper Collins, 2010) - buy from amazon.ca - buy from Chapters/Indigo

Richard C. Wydick, Plain English for Lawyers, 5^th ed (Carolina Academic Press, 2005) - buy from amazon.ca - buy from Chapters/Indigo

Bryan A. Garner, Legal Writing in Plain English: A Text With Exercises, 2d ed. (University of Chicago, 2001) - buy from amazon.ca - buy from Chapters/Indigo

James C. Raymond, Writing for the Court (Toronto: Carswell, 2010) - buy from amazon.ca

Grammar help:

Try here and here.


Questions about factums? I can be reached here.