The 15 Rules of Writing Facts in Litigation

Reference:
Writing to Win:The Legal Writer
by Steven D. Stark

Rule No. 1
Always include a fact section in your argument.

Many briefs or memoranda in support of motions contain no statement of facts.

This is a mistake.
No matter how short or trivial the facts are, it is your job to set them out for the
court separately from your legal arguments.
Always give the court your version of facts even when both sides agree on a
stipulated set of facts.
You don't want judges looking at the other side's version of facts, when they
should be looking at your own version..

Rule No. 2
Always distinguish between your statement of facts and your statement of the
case.

Statement of facts .- an assentation written down including all pertinent facts

for a court case.
Statement of Case - the presentation of facts informally by the plaintiff.
The rules of most courts require both a procedural history and a fact statement.
Procedural history is the story of what happened to your client after this became
a legal matter.
Fact Statement is the story that gave rise to the cause of action.
Most judges, however, pay little attention to the boring procedural history, unless
a procedural issue is at hand.
The author, advised against combining these two sections in most cases even if
local rules allow you to do so.
The statement of facts is usually the most important part of your brief, and if you
begin it with a tedious procedural recitation, the reader's attention will drift.
By putting each in its own section or subsection, you let the reader know what to
skim, and you can begin your significant facts on a strong footing.

Rule No. 3
In your first paragraph of the fact section, tell your readers what you're going to
tell them.

A summary paragraph is almost always essential, as it provides a context for the

facts to come.
After the initial paragraph, lead with your strongest facts, don't feel compelled to
tell your story chronologically..

Rule No. 4

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 After the initial paragraph, lead with your strongest facts, don't feel compelled
to tell your story chronologically.

Lead with your best facts that relate to the issue at hand.
Who you are determines what you consider important.
Yes, stories were once told chronologically and some biographies still are.
- But the introduction of movies in the early 20th century shattered our notions
of chronological time. Thanks to Fast cutting, we became accustomed to the
notion that stories can be told in a variety of ways and that if someone walks
into a room and walks out a second later with a beard, time has passed.
Before, when time passed, calendar pages might be torn off.
Litigartion writing is similar, which is why lawyers should lead with their best facts
that relate to the issue at hand.
Who you are determines what you consider important.
- Imagine the Three Bears are going to sue Goldilocks for trespass, and you
are writing the facts in a brief for each side.
Begin by asking yourself three questions, each requires a one-sentence answer:

The 3 Questions:
1. Given my client, what do I want to argue?
2. What's the story I want to tell to support the argument?
3. Given that argument, where is the best place for me to begin my
story?

If you represent the bears, you want to focus on the violation of their home. That
means the best place to start your story is probably the moment the bears arrive
home. You might begin by describing in exquisite detail how the furniture was
broken, how the expensive porridge was eaten and so on through all the damage in
the house.

If you represent Goldilocks, you should tell your story differently. You want to
concentrate on what it's like to be a small girl lost in the woods. You might begin
your story with Goldilocks in that forest, and only after you've etched that scene in
our memories do you begin moving her to the house.

Note:
Separate facts from fiction.

Rule No. 5
Deal with the facts against you.

Do not lead with a bad fact.

Example:
Take the bad fact and put it in a clause in the middle of a long sentence or
paragraph, where the reader is more apt to disregard it)

Attempt to neutralize an unfavorable fact.

Example:
By placing it in the middle of a paragraph or sentence, sandwiched between two
favorable facts.

Use the passive voice to deemphasize action

Because Passive Voice sentences necessarily add words and change the normal
"doer-action-receiver of action" direction, they may make the reader work harder
to understand the intended meaning.
Example:
The houses were burned by the rebels.

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 Give it a little detail.
A writer who wants us to remember a situation will describe it in a all its glory.
Example:
Manny was dismissed.

Place them toward the end of your fact section.

Example:
In our Goldilocks example, after the lawyers for the Three Bears have described
all the damage they found when they come home, they should mention that
Goldilocks was lost in the woods first. By doing so at the end, they deemphasize
that fact or at least put it in some kind of context.

Confront them head-on.

Example:
Define the factual word that is taken against your client, follow it with footnote to
provide the proper definition to such word, which could clearly diminish or
mitigate clients fault.

Rule No. 6
Don't argue in your fact section.

Arguments are for the argument section; your fact section strives to deal with
facts.
The most obvious way in which litigators violate this rule is by lying or
exaggerating. It is not only unethical, it is stupid, since judges who get the
impression that you're playing fast and loose with the facts don't believe anything
you say.
As David Ogilvy once advised, "Tell the truth, but make the truth interesting."

Rules violated by litigators:

1. Do not make legal conclusions in your facts.
Example:
"The other car had the last clear chance to avoid the accident"
(Not facts but own legal conclusions, which make up the argument.)
Instead:
Describe in great detail, what the other car was doing to give it the last clear
chance, but you shouldn't draw the legal conclusion itself until the argument
section.

2. Adjectives and adverbs are usually not facts.

Adjectives are opinions about facts and therefore generally don't belong in a fact
section.
Example:
"It was a rough ride" (Rough is not a fact.)
Instead:
Describe the actual scenario. "The occupants bounced out of their seats every
30 seconds."

3. You cannot ascribe feelings or mental states to people in a fact section.

Example:
"She felt bad about the accident." (Feelings)
"She had tears streaming down her face." (Observable fact)

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Rule No. 7
Show, don't tell.

The more desciptive your prose is, the better it is.

"Show us first and let us draw the conclusions for ourselves." (More persuasive)
Example:
A lawyer filing a motion arguing that his client is mentally incompetent to stand
trial, instead of saying...
My client is mentally incompetent to stand trial.
State:
"On the morning of the burglaries in question, my client tried to eat a live cat for
breakfast."

Rule No. 8
Use quotations to make your story come alive.

Quotations are effective, they make the characters come alive.

Example:
"The Defendant: Your Honor, I said: I request this Court to appoint Counsel to
represent me in this trial."
"The Court: Mr. Dela Cruz, I am sorry, but I cannot appoint Counsel to represent
you in this case. Under the laws of the X X X , I am sorry, I will have to deny
your request to appoint Counsel."
"The Defendant: The X X X Supreme Court says I am entitled to be represented
by Counsel."
"The Court: (Addressing the Reporter) Let the record show that the Defendant
has asked the Court to appoint Counsel to represent him X X XX."

Rule No. 9.
Each fact in your story must be there for a purpose.

The facts you include should be relevant to your legal contentions.

A few key details directly on point create a far stronger impression than a wave of
irrelevant description, no matter how colorful.
"Dullness won't sell your product, but neither will irrelevant brilliance."
Example:
Ronald Trap and Dody Dutert doing business under the trade name of United
Republic Oil Company, a partnership, own and operate a chain of seven retail
gasoline filling stations in the City of San Diego, California. They also own the
real estate on prominent business corners of the City of Las Vegas, Nevada,
upon which they have erected magnificent structures and equipment to house
their businesses.
Note:
No matter how magnificent those buildings were, they had nothing to do with he
issue at hand. They shouldnt have been mentioned.
You should be able to go over every detail in your facts and justify how each
relates to a larger legal point you're trying to establish.

Rule No. 10.

Deal with your best facts only once in the fact statement.

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 Describing a situation compellingly once in the facts, repeating them in the said
section only lessens the impact.
If judges have heard a story five thousand times, they're less likely to pay
attention to it the five thousand and first.
Remember: Familiarity breeds apathy
Example:
In the infamous Rodney King California assault case in the early 1990's. The first
dozen or so times people saw the videotape of King being beaten by police, it
was horrifying. Once the tape had been repeatedly played, however, or broken
down into slow-motion instant replay, it could not have the same galvanizing
effect on its audience.

Rule No. 11.

You can occasionally write about things that are not in the record, as long as you
call attention to that fact.

Write what did happen, but do not forget to write what didn't happen (but could
have).
What didn't happen (but could have) can occasionally be revealing.
Try to get the a jury to focus on what the client didn't do, in the hope that the
jurors will forget what the client really did do.
Example:
The dog should have barked at an intruder at night-time." What didn't happen -
but should have happened.

Rule No. 12.

In a story without much plot, don't be afraid to use topic headings.

Divide the facts into sections to highlight the essentials a judge should
remember.
Example:
A. Why the Comprehensive Land Reform Program Act Was Passed.
B. How the Comprehensive Land Reform Program Act Works.
C. Contemporaneous Legislative Proceedings Under the Act.
D. Etc.

Rule No. 13.

Give judges only those facts they need to decide the issues in the brief or
memorandum you are currently filing and divide them as necessary.

You should be able to go over every detail in your facts and justify how each
relates to a larger legal point you are trying to establish. If not, you have to
question strongly why you've put it in the story.
This is a concentrated form of writing.
Give judges only the facts that are pertinent to the motion or issue at hand.
If you are arguing to compel production of a document in discovery, after the
initial summary sentence, write about only the facts that relate to this issue.

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Rule No. 14.
If you're in a jurisdiction where you must number your facts, write the narrative
first, then do the numbering.

Try to write the story as you've outlined and put in the numbering last.
To keep you on the right path, do not worry about using chronology or numbering
as you write.

Rule No. 15
Avoid putting new facts in your argument.

Judge won't take factual assertions as true, if they're made for he first time in the
argument section.
Step 1:
Try to pull all your necessary facts in the fact section to establish veracity.
Step 2:
Then return to the few you need to use in the argument.

Writing the facts takes more creativity than litigators commonly imagine. always
remember, though, that "THE WINNER IN LITIGATION IS NOT THE LAWYER WHO
TELLS THE BEST STORY, IT IS THE LAWYER WHO TELLS THE BEST STORY
THAT IS SUPPORTED BY A STRONG LEGAL ARGUMENT."

"LAWYER'S JOB IS NOT TO KNOCK DOWN HIS OPPONENT'S STORY BUT TO

TELL HIS OWN,"

Submitted to: Dr. Arthur S. Velasco, LLM, DCL / Legal Writing

Submitted by: Venus R. Geronimo/ JD 1-4

Date: January 12, 2017

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