Big Little Lies in a Statement of Facts

Hi everyone! I'm grateful to be included as an author on the Appellate Advocacy Blog.  Please bear with me as I get the hang of it.

For my first post, I wanted to address something that has been happening with alarming frequency in my practice.  A little background--in 2015, I opened my appellate practice after teaching lawyering skills for ten years.  Since returning to practice, I have been (perhaps naively) surprised at what attorneys will say in briefs. In my pre-teaching life as a young(er) attorney, the joy in writing briefs was that the record was the record and I didn't have to argue facts. (Insert your favorite "in my day, we had to walk 4 miles through the snow to get to school in the morning....").  And now in my post-teaching life, I find myself responding to Statements of Fact that omit relevant facts, and misrepresent others.  Is this a new trend in line with the whole "Alternative Facts" movement?  And what to do about it?

Of course, everyone knows the rules here.  Federal Rule of Appellate Procedure 28 requires that an appellant's brief contain "a concise statement of the case setting out the facts relevant to the issues submitted for review, describing the relevant procedural history, and identifying the rulings presented for review, with appropriate references to the record."  The state corollary in Missouri, where I have been practicing the last two years, defines the Statement of Facts as "a fair and concise statement of the facts relevant to the questions presented for determination without argument."  Even though the terms "relevant," "concise," and "fair" might have different meanings to different writers, the rules just don't provide for omission of key facts, or reinvention of facts in the record.  

And of course there's Model Rule of Professional Conduct  3.3 requiring "candor to the tribunal." A lawyer may not knowingly: 

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

Ultimately, as Garner and Scalia stated: "Never  overstate your case.  Be scrupulously accurate."  

I've discovered a few additional imperatives when reviewing your opponent's statement of facts that I hope you will find useful. 

1. Look carefully for material  omissions.  

Since our first year legal writing class, we have learned that attorneys  can't omit bad facts in the statement of facts.   We are taught how to "artfully" deal with the bad facts, or hide them in plain sight, or just admit them and get the whole business of bad facts out of the way.  But in reality, bad facts are omitted from the Statement of Facts all the time.

Example:  Initially, the parties were granted joint legal and joint physical custody over the child, but Mother had "final say" if the parties could not agree.  After the first custody modification proceeding, that "final say" language was removed from the parties' parenting plan and the parties were ordered to share all decision-making rights. 

So the way these facts are presented, it would seem that as a result of the modification proceeding, neither parent had "final say" in making decisions for the child, right? Wrong. While the facts as stated were themselves accurate, and the words "final say" were removed from the parenting plan, the writer of that brief omitted the following: "in the event that the parties cannot agree, Mother shall have the discretion to make the final decision. . . ."  The prior modification decision wasn't at issue in this appeal, but still. Less than scrupulously accurate?  In your response, point out the omission and correct it, clearly and concisely. 

2.   Identify inaccurate inferences based on trial testimony, or "I don't think that word means what you think it means."

For most appellate lawyers, our job is to identify the meanings of words.  I love nothing more than a good old-fashioned plain language statutory interpretation argument.  But beware of the tendency of some to assume an agreed-upon meaning of what was said.

Example: Mr. Smith consented to his attorney's withdrawal, when Mr. Smith said "okay" after the trial court stated it was granting the attorney's motion to withdraw.

As anyone reading a trial transcript can attest, instances of the word "okay" occur more frequently than we'd like to believe, and do not usually indicate consent.  Get out the old dictionary (I always go with the OED because it is so comprehensive), and point out that the word "okay" also means "introducing an utterance or as a conversational filler, typically without affirmative or concessive force, but rather as a means of drawing attention to what the speaker is about to say: well, so, right."  Done and done. 

    3. Beware the Projector, or  "I know you are but what am I?"

After you've filed your brief, whether you're representing the appellant or the respondent/appellee, be prepared for allegations of inaccuracy in your  Statement of Facts.  Urban Dictionary defines"projection" as  "[a]n unconscious self-defence mechanism characterised by a person unconsciously attributing their own issues onto someone or something else as a form of delusion and denial."

Example A. Broad accusations:  The appellant's  one-sided, argument-riddled statement of facts is unfit to be a statement of facts in an appellate brief.

How to respond to this?   I believe in reiterating the scrupulous accuracy and citations to the record for your statement of facts.  Nip that one in the bud, but address it.

 Example B.  Specific false allegations:    In his Statement of Facts, Mr. Smith states that the premarital portion of his             retirement account was valued at $200,000, without disclosing it was just his testimony.

Actual sentence in the Statement of Facts:  "Mr. Smith orally testified that, the premarital portion of the retirement account was valued at $200,000."  

What to even do with that statement? Again, just unpack it for the court, explain the omission and the inaccurate nature of the claims. My suggestion in brief writing, is to tolerate none of this kind of manipulation, even if the issue itself isn't one for the court of appeals. Be unwilling to allow another officer of the court to paint your writing as manipulative or deceptive.  

4.  A few final tips for disputing untruths:  

1. Be short and direct.  Leave the outrage at the door.  (i.e., don't say "nowhere has the undersigned read a more egregiously inaccurate Statement of Facts").
2. Avoid adjectives and adverbs ("Respondent is incredibly, blatantly wrong").  I like to say simply:  "Respondent is wrong."
3. If you are the respondent, better to first set the record straight and dispute inaccuracies made by your opposing counsel; then bolster your own story.  If you are the appellant, brace for the attack, and then respond in your reply brief. 
4. This is a good time for bullet points.  Just list everything in the opposing Statement of Facts that's inaccurate or misleading, or omits information, in bullet form. 
5. Move on to your own story as quickly as possible.

In the world of appeals, we fancy ourselves the intellectuals and academics of legal practice--so why would any  appellate attorney wants to put his or her reputation on the line by omitting and reconstructing facts in the Statement of Facts section of a brief? And then, is it your responsibility to correct these mischaracterizations?  I think yes.  Does it matter how significant the mischaracterizations are?  I think no. 

Correct all outright lies, omissions of critical facts, and suggestions of  blame-shifting.  Use your allotted word count to be scrupulously honest.  

 

And for next time---misrepresenting legal authority.  Or I'm open to suggestion!

Thanks for reading,

Allison