More Than "Just the Facts": Writing Persuasive Fact Statements

    One of the most overlooked sections of an appellate brief is the Statement of Facts. But it shouldn't be. A good Statement of Facts can get a judge on your side before he or she even reads the Argument. Part of the problem with writing good fact statements is that it's hard. It takes work, and it means being intentional about using persuasive devices and tactics while staying true to the evidence presented in the court below. With apologies to Detective Joe Friday of Dragnet, the Statement of Facts is more than "Just the Facts." Here are some tips for writing a better, more persuasive, fact statement.

• Just do it. Appellants, generally speaking, are required to include a Statement of Facts. But even if you represent an appellee and your jurisdiction's rules say that you can dispense with including a Statement of Facts, do it anyway! Why let the appellant control the narrative? Undoubtedly, the appellant will be represented by a persuasive advocate who presents the facts in the light most favorable to the appellant. And sometimes the appellant's brief will omit, accidentally or purposely, some of the best facts for the appellee's argument. 
• Put It Off. Procrastination can be a good thing when it comes to writing the Statement of Facts. Consider drafting the fact statement after completing the Argument (or at least after completing a draft of the Argument). While you need to know the evidence thoroughly in order to put together an argument, leaving the fact statement for later allows you to better understand what needs to be included and what can be omitted. Remember that every fact mentioned in the Argument should be set out in the Statement of the Facts; there should be no facts in the Argument that come as a surprise to the reader.
• Be an Omniscient Observer. If possible, write the facts as though seen from the viewpoint of an omniscient observer. Avoid writing facts by reporting what a witness testified (although you may want to do this when setting out the other side's evidence to downplay that evidence). Just repeating the testimony does nothing to help the Court, and it doesn't make your brief more persuasive. Synthesizing a lot of eyewitness testimony into a coherent story often isn't easy, but it is worth it.
• Be a Storyteller. Speaking of stories, you want your reader to be able to identify the protagonist, the antagonist, and other archetypal characters of your story from the fact statement. You want the reader to fully understand the plot of your story, the arc of the plot, and the climax. While chronological order often works best, fact statements occasionally work well by starting with the climax.
• Bury Bad Facts. You can't just ignore bad facts. If they potentially impact the outcome of the appeal, bad facts must be included. But there are ways to minimize the impact of bad facts. The concepts of primacy and recency--that the first and last parts of an argument, a paragraph, or even a sentence command the most attention from and impact the reader the most--should be considered. By placing facts bad for your argument in the middle of a paragraph between facts good for your argument, you can draw the reader's attention to the facts that most help your position and away from those that do not.
• Be Selectively Passive. We all have heard that passive voice should be avoided. Generally, that's true. However, there are exceptions. Using passive voice to state bad facts makes those facts drier, more mundane, less memorable, and generally less harmful to your argument. Use passive voice sparingly. But don't hesitate to use it when it will help your cause.
• Have a Theme. The theory of your argument is why you should win based on the law. The theme, on the other hand, is why you should win based on the reader's values. It is the emotional center of your case. Use facts to highlight your theme and to tell the reader why you should win on an emotional level.
• Use Background Facts. In creating a story with a theme, you invariably will find you need to include facts that aren't necessary for the portion of your argument that is based strictly on logic and legal precedent. These background facts nevertheless can be valuable in creating the emotional tug you want to have in the fact narrative. Just be sure not to overdo it because you risk overwhelming your reader with irrelevant facts.
• Make It Memorable. One way to make your Statement of Facts memorable is to give it a little flair. Using figures of speech can help. You probably want to save the metaphors and similes for the Argument, but other figures of speech like alliteration can go a long way toward making your writing more eloquent. Of course, this too is something you won't want to overdo.
• Emulate Excellent Examples. The way jurists write is somewhat different from the way practitioners write, but we still can learn a lot from them. Below are examples of facts taken from the majority and dissenting opinions of the United States Supreme Court decision in Atkins v. Virginia, 536 U.S. 304 (2002), a case in which the Court decided that criminal defendants with an intellectual disability cannot be subjected to capital punishment. Because the resolution of the case was not dependent on the specific facts, each opinion used only one paragraph to set them out. Both fact statements are honest, but each is written undoubtedly in an attempt to sway the reader.

At approximately midnight on August 16, 1996, Atkins and William Jones, armed with a semiautomatic handgun, abducted Eric Nesbitt, robbed him of the money on his person, drove him to an automated teller machine in his pickup truck where cameras recorded their withdrawal of additional cash, then took him to an isolated location where he was shot eight times and killed.

Atkins, 536 U.S. at 307.

    Justice John Paul Stevens, writing for the majority, included this one lengthy sentence as the only facts. These facts name the co-perpetrator of the crime, contain very little detail about the crime, and utilize the passive voice when the actual shooter goes unidentified. The theme arguably is that the culpability of Atkins was questionable.

    The dissenting opinion, written by Justice Antonin Scalia, also contained only one paragraph of facts.

After spending the day drinking alcohol and smoking marijuana, petitioner Daryl Renard Atkins and a partner in crime drove to a convenience store, intending to rob a customer. Their victim was Eric Nesbitt, an airman from Langley Air Force Base, whom they abducted, drove to a nearby automated teller machine, and forced to withdraw $200. They then drove him to a deserted area, ignoring his pleas to leave him unharmed. According to the co-conspirator, whose testimony the jury evidently credited, Atkins ordered Nesbitt out of the vehicle and, after he had taken only a few steps, shot him one, two, three, four, five, six, seven, eight times in the thorax, chest, abdomen, arms, and legs.

Atkins, 536 U.S. at 338 (Scalia, J., dissenting).

    In this narrative, unlike the majority's narrative, the co-perpetrator is not named. Many more details are included, among them information that humanizes the victim. Finally, the last sentence uses the active voice to state that Atkins was the one who pulled the trigger and uses a figure of speech (known as iconicity or bulk) to emphasize the number of times the victim was shot, thereby making an emphatic impression upon the reader. The obvious theme of the facts is that Atkins was quite capable of and culpable in carrying out the crime.

    Both fact statements are honest, but each subtly (or perhaps not so subtly in the dissent) seeks to seize control of the narrative in an attempt to influence those who may be reading the opinions. The point here is not that we have as much leeway to write like a Justice, because we may not. But the point is that we can use various devices and tactics to make a fact statement more powerful and persuasive.

     The Statement of Facts shouldn't be overlooked or be an afterthought when writing an appellate brief. It should be a tool to grab the reader's attention and get the reader on your side from the very beginning. The value of a persuasive fact statement makes it well worth the work required to put it all together.