(a) Craft a persuasive Statement of Facts

You want to write the Statement of Facts so that the court will want to decide the case in your favor after it has finished reading just that part of your brief or submission.357 To help you, try the following tips.

craft CRAFT

Tip 1. State your 'theme'.358

Tip 2. Tell the judge about the litigant.359

Tip 3. Then tell the judge the disruption that happened. Write the facts chronologically.360

Most literature urges chronological order. For example, Vom Baur says:

'By recreating the realistic relationship between facts, chronology generates an additional power of its own. The juxtaposition inherent in a chronological statement will convey messages that will not be provided otherwise.'361

Tip 4. If you have complicated facts, structure the facts into compartments, introduced by headings:362

'[W]here facts are divided into units and each compartment begins with an argumentative heading, the reader can usually see, just by turning the pages, what the case is all about and what the writer is trying to sell him … [T]he mere process of organizing a statement of facts compels the writer to prepare his material with greater care.'363

Tip 5. For each statement of fact, include a reference to the record:364

'A factual statement … does not carry conviction if the judge notes the absence of a record page reference in support of the particular claim.'365

Tip 6. Write the statement of facts accurately and candidly:

'If the court finds you are inaccurate, either by way of omissions or of affirmative misstatement, it will lose faith in you, and your remaining assertions may well fail to persuade.'366

Tip 7. State your proposed resolution.367

Tip 8. Return to your theme throughout. But do not tell the judge what to feel; 'show them the situation, and that feeling will awaken in them.'368

For example:

'Don't say that something is unfair; show why it is, and let the reader conclude that it is. Don't say that somebody acted unprofessionally; explain what the person did, and let the reader decide … If you follow this advice, you'll find yourself being more concrete, more careful in marshalling facts, more adept at arousing the very emotion you feel. You'll find yourself being more persuasive.'369

Table 72: Craft a persuasive Statement of Facts

357 Frederick Bernays Wiener, Briefing and Arguing Federal Appeals (1961, 2001 reprint) 48; James W McElhaney, 'Legal Writing That Works' (2007) 93(7) ABA Journal 30.

358 See Step 8.4, above.

359 See Step 8, above; Ruth Anne Robbins and BJ Foley, 'Fiction 101: A Primer for Lawyers on How to Use Fiction Writing Techniques to Write Persuasive Facts Sections' (2001) 32(2) Rutgers Law Journal 459, 476.

360 See, for example, Joseph P Napoli, 'Forceful Brief Writing and Oral Argument' (1977) 12 Trial Lawyers' Quarterly 82, 83; Frederick Bernays Wiener, Briefing and Arguing Federal Appeals (1961, 2001 reprint) 48; Andrew Goodman, Influencing the Judicial Mind—Effective Written Advocacy in Practice (2006) 33, 46; Dennis Owens, 'Appellate Brief Writing in the Eighth Circuit' (2001) 57(2) Journal of the Missouri Bar 75; Ruggero J Aldisert, Winning on Appeal: Better Briefs and Oral Argument(2nd ed, 2003) 169–70 (quoting Margaret McGaughey's 'Four Rules of Thumb'); Edward D Re and Joseph R Re, Brief Writing and Oral Argument(9th ed, 2005) 111; Mario Pittoni, Brief Writing and Argumentation (3rd ed, 1967) 30; Jordan B Cherrick, 'Issues, Facts, and Appellate Strategy' in Priscilla Anne Schwab (ed), Appellate Practice Manual (1992) 73, 79. But compare Steven D Stark, Writing to Win: The Legal Writer (1999) 97; Jill J Ramsfield, 'Writing High Impact Briefs' (1994) 30 Trial 54, 57; Andrew H Baida, 'Writing a Better Brief: A Useful Guide to Better Written Submissions in Appellate Advocacy' (2002) 22 Australian Bar Review 149, 159; Raymond T Elligett Jr and Hon John M Scheb, 'Stating the Case and Facts: Foundation of the Appellate Brief' (2003) 32 Stetson Law Review 415, 422. Facts can be arranged chronologically within topics: Wiener, above, 46, 48; Laurel Currie Oates and Anne Enquist, The Legal Writing Handbook: Analysis, Research, and Writing (2006) at, for example, 123; Girvan Peck, Writing Persuasive Briefs(1984) 117.

361 F Trowbridge Vom Baur, 'The Art of Brief Writing' (1976) 22 The Practical Lawyer 81, 85–6.

362 F Trowbridge Vom Baur, 'The Art of Brief Writing'(1976) 22 The Practical Lawyer 81, 86. See also Joseph P Napoli, 'Forceful Brief Writing and Oral Argument' (1977) 12 Trial Lawyers' Quarterly 82, 84; Frederick Bernays Wiener, Briefing and Arguing Federal Appeals (1961, 2001 reprint) 47.

363 F Trowbridge Vom Baur, 'The Art of Brief Writing'(1976) 22 The Practical Lawyer 81, 86.

364 F Trowbridge Vom Baur, 'The Art of Brief Writing'(1976) 22 The Practical Lawyer 81, 87; Andrew H Baida, 'Writing a Better Brief: A Useful Guide to Better Written Submissions in Appellate Advocacy' (2002) 22 Australian Bar Review 149, 160, 162; Kenneth Hayne, 'Written Advocacy', paper delivered as part of the Continuing Legal Education Program of the Victorian Bar, 5 and 26 March 2007, 20; Frederick Bernays Wiener, Briefing and Arguing Federal Appeals (1961, 2001 reprint) 248; Dennis Owens, 'Appellate Brief Writing in the Eighth Circuit' (2001) 57 (2) Journal of the Missouri Bar 75; Ruggero J Aldisert, Winning on Appeal: Better Briefs and Oral Argument(2nd ed, 2003) 170 (quoting Margaret McGaughey's 'Four Rules of Thumb').

365 Jason L Honigman, 'The Art of Appellate Advocacy' (1966) 64(6) Michigan Law Review 1055, 1061.

366Frederick Bernays Wiener, Briefing and Arguing Federal Appeals (1961, 2001 reprint) 49. See also Andrew Goodman, Influencing the Judicial Mind—Effective Written Advocacy in Practice (2006) 55.

367 Ruth Anne Robbins and BJ Foley, 'Fiction 101: A Primer for Lawyers on How to Use Fiction Writing Techniques to Write Persuasive Facts Sections' (2001) 32(2) Rutgers Law Journal 459, 477.

368 Natalie Goldber, Writing Down the Bones (1986) 68 quoted in Bryan A Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts (2nd ed, 2004) 397. See also Steven D Stark, Writing to Win: The Legal Writer (1999) 106–8.

369 Bryan A Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts (2nd ed, 2004) 398. See also Frederick Bernays Wiener, Briefing and Arguing Federal Appeals (1961, 2001 reprint) 51, 61 (never argue or editorialise in your Statement of Facts); Andrew Goodman, Influencing the Judicial Mind—Effective Written Advocacy in Practice (2006) 56; James W McElhaney, 'Balanced Persuasion' (2002) 88(3) ABA Journal 60, 61 ('Real persuasion takes place when the listener thinks the conclusion is his or her own idea … People are convinced by their own ideas—not yours. Your job as a writer … is to help them find the right ideas in themselves that will lead them to decide the case your way'); James W McElhaney, 'Legal Writing That Works' (2007) 93(7) ABA Journal 30 ('facts, not opinions, are what convince the reader').

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