The first step in writing a compelling statement of facts for your brief or motion is to prepare a chronology of events in the case. That will help you identify the crucial elements, e.g., who did what to whom when, and how and why they did it. Once the chronology is complete, you can start writing a narrative – a tale of the case that should be able to stand on its own. From reading only that section, the judge should be able to understand what the case is about.
To write in narrative form, compose as if you are telling a story. Avoid starting a series of sentences with dates, as in, “On April 1, 2017, at 11:55 a.m.” That’s fine for the chronology, but it will kill your prose. Unless a precise point in time is critical to understanding the case or deciding its outcome, give mostly relative times, like “Fifteen minutes later” or “For several months.”
While the statement of facts proceeds naturally, and, let us hope, dramatically, from the beginning of the dispute to the most recent activity, that does not mean the facts should be recounted in the order they came out in the police report, at the pre-trial hearing, in a deposition, or at trial. Avoid witness-by-witness accounts of the testimony, lest you sound like you are reading from the record. Organize the facts in a way that puts the focus on the issues. Group items of evidence relating to a particular topic together, so the court can easily get the whole picture.
Consider opening the section with a “panoramic shot” of the case, where you “set the stage” and “sound your theme,” as legal writing expert Ross Guberman puts it in Point Made, 2d Ed. For an example, Guberman points to the sentence Lawrence Tribe placed at the beginning of the factual background section in his brief supporting the University of Michigan Law School’s consideration of race as a factor in admissions: “Michigan’s public universities have long enjoyed autonomy over their admissions policies and procedures.” Tribe ingeniously started with a fact that sounded fairly neutral, but also announced his theme—that the real issue was academic freedom.
For the sake of your credibility, keep the statement of facts free of argument. Try not to make any obviously biased conclusions, and don’t editorialize through overuse of adjectives and adverbs like tellingly or interestingly. But do remember that you are telling the tale from a particular point of view, and you want the judge to be on your side by the end. Writing a good statement of facts is an exercise in gentle persuasion. Don’t leave out relevant bad facts, just put them in context. The key is knowing which facts to put “in high relief,” which to leave in “low relief,” and which to omit altogether, as Bryan Garner explains in Making Your Case:
To say that the Statement of Facts must not contain argument is not to say that it cannot be designed to persuade. Like everything else in your brief, it must be. You advance that objective by your terminology, by your selection and juxtaposition of the facts, and by the degree of prominence you give to each.
You’ll be engaging in what he says Aristotle called “amplification and diminution.” Amplify the facts that support the outcome you want by “placing them prominently in the narrative.”
Attorney Savannah Blackwell is a former news reporter who covered government and politics for more than a decade, mostly in San Francisco. She can be reached at email@example.com. Follow her on Twitter at @SavannahBinSF.