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Commercial & Business Litigation

The Art of Writing a Persuasive Fact Section

By Emily Ambrose – May 20, 2015


Young lawyers spend much of their time researching statutes and case law to develop legal arguments about legislative intent, public policy, or the plain language in a statute. We draft carefully cited arguments on developing legal doctrines. We distinguish the other side’s cases. This work is important—critical for any decent brief—but as young lawyers we may be undervaluing the importance of the fact section. By and large, the judge will be familiar with the law. But the fact section is unique to each case. A well-written fact section will provide the judge with the framework he or she needs to reach the legal conclusions you want. A well-written fact section will persuade the judge of your legal argument before it is made. This article provides advice and examples for young lawyers on either side of the case.

 

Write to Your Audience
Putting yourself in the reader’s shoes is always the number one rule for persuasive writing. For a legal brief, your audience is the judge. Writing to the judge involves two considerations. The first is style. It is important to recognize that judges are busy. The writing must be succinct and organized. Use headings, diagrams, or charts if they help clarify the story. At the same time, recognize when the facts are straightforward and present them simply. The tone of the fact section should be informational, not argumentative or condescending. Avoid jargon and technical terms when simple language will do. Do not say “price point” when you can say “price,” and do not say URL when you can say “web address.” When technical terms must be used, define them in plain terms. Unless an acronym will simplify the story, avoid it. The bottom line is this: when editing drafts, imagine you are a busy judge who is unfamiliar with the case.

 

The second consideration is substance. Think about when additional context is needed and when it is not. If the setting is a particular industry, consider what aspects of the industry should be explained. If the setting is a neighborhood, consider whether its geography or history would aid the story. If it involves an organization, consider providing a description of the organization and its key players. While you may have been working on the case for months, your brief may be the first time the judge has seen a case like it. If the fact section is unhelpful to the judge—or worse, it is confusing to the judge—he or she will ignore it. On the other hand, if the fact section is helpful, it may provide the framework for the judge to decide the legal issues in your client’s favor.

 

Craft the Best Story You Can
Do not thoughtlessly adopt the other side’s version of the facts, or their organization of the story. Tell it in your own words.

 

Choose which facts to tell. You must present the relevant facts, both good and bad. But you should do so in a way that highlights the facts that support your legal argument (including any defenses you may have) and previews your trial themes. Maintaining credibility in the fact section is critical. The fact section must be accurate and not argumentative. If the fact section is not credible, your entire brief will be discounted.

 

In choosing which facts to tell, consider writing the fact section after you have drafted the argument section. That way, you will know which facts you need. Then consider what additional facts would be helpful for context and clarity. Make sure you include any relevant fact that will be used by the other side. Omitting a relevant fact will diminish your credibility.

 

In Rule 12 motions, the fact section of the brief is somewhat constrained by the allegations in the complaint, which are written by the plaintiff and will favor the plaintiff’s case. (To that end, if you are the plaintiff, you should already be thinking about the fact section when you are drafting the complaint.) If you are the defendant, it is important to employ two tools. First, use the concept of judicial notice to add facts. The court will look beyond the complaint to “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). Courts may take judicial notice of documents “whose authenticity no party questions,” “contract documents,” and “matters of public record.” United States ex rel. Kraxberger v. Kan. City Power & Light Co., 756 F.3d 1075, 1083 (8th Cir. 2014) (citing cases). Judicial notice allows you to highlight provisions of the contract otherwise ignored in the complaint (such as a waiver provision) and provide historical background needed to frame the case.

 

The second tool is to consider the facts that are not alleged. A defendant may say: “Plaintiff does not allege the defendant knew the product was dangerous,” or “Plaintiff does not allege physical injury.” Because the plaintiff is not required to articulate every known fact in the complaint, you must understand the case well enough to know when to use this tool. Avoid the tool if pointing out the missing facts helps the plaintiff identify facts that strengthen his or her case.

 

Decide how to tell the facts. Organization provides the judge with a predictable framework from which to learn, understand, and remember the facts. Facts often start chronologically, but not always. It can be effective to start in the middle and then flash back. Or start with a key fact omitted by the other side to show that you are telling the real story.

 

As a general rule of thumb, the plaintiff’s story will focus on the facts that establish the elements of the claim. The defendant’s story will start earlier in the timeline, providing context for the plaintiff’s allegations and support for affirmative defenses.

 

The following are examples of a plaintiff-side fact section and a defense-side fact section in a fictional false advertising case. The plaintiff emphasizes the “promise” that was made by the defendant, the plaintiff’s subjective belief, and damages. By contrast, the defense provides additional context for the product and focuses on disclosure and compliance with federal law. Neither version is argumentative, but it is clear which side is which.

 

Example 1 (Plaintiff): Defendant BigFoods Company promised that each and every package of its Brand Z food products was delicious, wholesome, and made from quality, locally grown ingredients. Plaintiff Jane Foodie was a loyal, longstanding BigFoods customer. She bought Brand Z and fed it to her family. She also encouraged her friends and coworkers to buy it. Foodie recently learned, however, that a key ingredient in Brand Z is not “locally grown” as promised in Brand Z’s advertising—it is manufactured using industrial processes and then sold to BigFoods. Foodie would not have purchased Brand Z for her family, or encouraged her friends and coworkers to buy it, if she had known the truth. Foodie lost at least $1 on every package of Brand Z she bought. She, and others like her, has sued under consumer protection laws so that they may be reimbursed for their losses.

 

Example 2 (Defendant): Brand Z has been on the shelves for 25 years, was the first of its kind to offer both health and convenience, and contains ingredients that are made locally. Each package of Brand Z is made from ingredients that are farmed and harvested in the United States. Moreover, every Brand Z product contains a full list of ingredients, as required by federal law. Expressly included on that list is the ingredient that Plaintiff Jane Foodie claims is not “locally grown.” But that ingredient is made from locally grown grain, which is then processed after harvest and sold to BigFoods. BigFoods has complied with every law and regulation regarding the labeling and advertising of Brand Z, and Foodie does not allege otherwise. Foodie offers no factual support for her claim that she overpaid for Brand Z and cannot point to a comparable product sold at a cheaper price.

 

Use the Delete Button
Another critical tip for persuasive writing (attributed to various writers) is that you cannot be afraid to “kill all your darlings”—or in other words, delete the work you have invested in perfecting—to improve the overall product. This may be one of the hardest things for young lawyers to do. It seems inefficient. And depending on the case, you may consider cutting billing time for the now-deleted work. Nevertheless, this is nonnegotiable. Any extra words, sentences, or paragraphs that do not help the narrative detract from the persuasiveness of the brief.

 

To underscore this point, I leave you with two of my favorite writers on writing. Bryan Garner advises in The Elements of Legal Style: “In revising, the greatest skill is knowing what to reject. Search for every superfluous syllable. If a word or phrase doesn’t add to the sentence, blot it out. Every word, every phrase, every sentence, ought to have some definable purpose.” Stephen King, in On Writing: A Memoir of the Craft, advises against overusing words ending in “ally” or “ly,” such as “critically,” “interestingly,” “obviously”—because they are unnecessary: the reader should be able to tell if a fact is important without specific direction. Deleting these unnecessary words has the added benefit of making the narrative less argumentative.

 

Further Reading
Many people have written about writing. Above, I quote from Stephen King, On Writing: A Memoir of the Craft (2000); and Bryan A. Garner, The Elements of Legal Style (1987). In addition to those, I recommend Bryan A. Garner, Garner on Language and Writing (2009); Stephanie Kane, “Narrative, the Essential Trial Strategy,” 34 Litigation, no. 4, Summer 2008, at 52; Judge Stephen J. Dwyer, Leonard J. Feldman & Ryan P. McBride, “How to Write, Edit, and Review Persuasive Briefs: Seven Guidelines from One Judge and Two Lawyers,” 31 Seattle U. L. Rev. 417, 418 (2008); and Mark Herrmann, The Curmudgeon’s Guide to Practicing Law (2006).

 

Keywords: litigation, commercial, business, brief, fact section, persuasive writing

 

Emily Ambrose is with Blackwell Burke P.A. in Minneapolis, Minnesota.


 
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