May 25, 2018

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A New Approach to Writing Facts, Part II

The first half of this article explained how to create stories. It drew analogies to filmmaking and described four criteria from Stephen Armstrong and Timothy Terrell. Those criteria are where does a story start, where does it end, from whose perspective is the story told, and which details are included and where.[1]

Let’s apply this approach to fact sections.

Example 1: A Criminal Appeal

Compare these two excerpts from a criminal appeal’s fact sections.

Version 1:

Around 11:00 p.m., Sergeant Smith, Officer Jones, and Officer Richardson, members of the Auto Larceny Unit with over twenty years of combined experience, patrolled in an unmarked car near Main Street and Tenth Avenue. These uniformed officers observed a white Subaru with a Wyoming license plate double-parked in front of a housing project in a high crime area. When Smith saw the Wyoming license plate, he ran a computer check for possible car theft because Wyoming had a recent streak of fraudulent car registrations.

As the officers waited for the results, defendant, wearing a camouflage jacket, left the car, crossed Tenth Avenue, and entered a gas station. He stood there, looking up and down the street, but did not buy anything or peruse the store. Then two other passengers left the car and entered a nearby housing project. A few minutes later they came back with a brown paper bag and re-entered the car. Then the defendant crossed the street and got back into the car. They pulled away, and made a U-turn over a double yellow line.[2]

Version 2:

Michael Doe left Jackson Hole to visit his ill cousin in Denver. He had no car so he got a ride from his cousin Christopher, and his cousin’s friend, James. They left Jackson Hole around 6:00 a.m. The rental car, a Subaru, had three rows of seats. Christopher drove and James was the front seat passenger. Michael sat behind Christopher. No one sat in the third row seat closest to the trunk.

When they arrived in Denver that night, they stopped by Christopher’s aunt’s home. They double-parked across from a gas station. After the long trip, Michael got out to stretch his legs. He crossed the street to a gas station. Christopher and James got out to visit the aunt. After a few minutes, everyone got back inside the car. They pulled away en route to Michael’s cousin. When Christopher noticed flashing lights in his rearview mirror he pulled over. Three officers approached the car.[3]

Analysis:

Even if this was the only section you read from each brief, you would probably determine the case involves a Fourth Amendment issue surrounding a car stop, and the first version belongs to the prosecution while the second version comes from the defense. Note the varying strategies.

The prosecution’s story starts minutes before the car stop. It begins from the combined officers’ perspective. The reader learns what they know and nothing else. This perspective aligns with the prosecution’s viewpoint on the Fourth Amendment, which usually centers on reasonableness; officers do not need to be perfect or all-knowing, they just have to act reasonably. The details chosen support the position. You learn a lot about the officers’ background. To build credibility, you learn their names, their unit, and some of their experience. The story shifts to the car occupants’ perspective to describe their relevant behavior. The details build suspicion. You know very little about them, but a lot about the situation. This type of car is often stolen and it is in a high crime neighborhood. The defendant’s behavior at the gas station makes him appear to be a lookout. And the ending is critical. The brown paper bag acts like a new character. At the end of the story the reader wants to know what is in the bag. Drugs? A gun? Putting aside the law, the facts almost burden the defendant to provide an explanation.

Contrast the defense story. It starts hours earlier from the occupants’ perspective to show how normal their behavior is. You learn the names of everyone in the car and their relationship to one another. Michael, the defendant, has a good motive to be in the car (visiting a sick relative) and is doing something both legal and normal by getting a ride from his cousin. The details about who sat where foreshadows an issue about contraband later located in the car and who it belonged to. The story ends with the police pulling the car over. Interjecting the officers at the end accomplishes a few goals. Primarily, the reader is left wondering why the officers pulled over the car. Again, regardless of the legal burden, the reader wants an explanation for the officers’ actions. You never learn the names or backgrounds of the officers because to the defense they do not matter.

Example 2: A Supreme Court Brief

Here’s an example from a brief by then-attorney John Roberts. The question before the U.S. Supreme Court was whether the EPA could override Alaska’s permitting decision under the Clean Air Act (CAA).[4] The fact section starts with this:

Statutory and Regulatory Background. The CAA establishes “a comprehensive national program that ma[kes] the States and the Federal Government partners in the struggle against air pollution.” General Motors Corp. v. United States, 496 U.S. 530, 532 (1990). At the same time, the CAA recognizes that “air pollution prevention and air pollution control at its source is the primary responsibility of States and local governments.” 42 U.S.C. §7401(a)(3) (emphasis added); see also id. § 7407(a) (“Each State shall have the primary responsibility for assuring air quality within the entire geographic area comprising such State”) (emphasis added). Thus, while the CAA assigns the EPA the responsibility for establishing national ambient air quality standards (“NAAQS”) for certain pollutants, see id. § 7409, the Act assigns the States the responsibility for implementing them. See id. §§ 7407(a), 7410(a).[5]

The opening begins with the regulatory scheme—not with Alaska, not with the federal government, not with a description of air pollutants, and not with the mining company this case affected. This choice frames the issue as Congress wanting states to control air pollutants. It uses case law and the Act’s language to emphasize a joint-scheme with states leading the way. That is a strategic choice to have the reader understand this viewpoint upfront and ideally view the later facts through this lens.

Later the fact section reads:

For generations, Inupiat Eskimos hunting and fishing in the DeLong Mountains in Northwest Alaska had been aware of orange- and red-stained creekbeds in which fish could not survive. In the 1960s, a bush pilot and part-time prospector by the name of Bob Baker noticed striking discolorations in the hills and creekbeds of a wide valley in the western DeLongs. Unable to land his plane on the rocky tundra to investigate, Baker alerted the U.S. Geological Survey. Exploration of the area eventually led to the discovery of a wealth of zinc and lead deposits. Although Baker died before the significance of his observations became known, his faithful traveling companion—an Irish Setter who often flew shotgun—was immortalized by a geologist who dubbed the creek Baker had spotted “Red Dog” Creek.

. . .

Operating 365 days a year, 24 hours a day, the Red Dog Mine is the largest private employer in the Northwest Arctic Borough, an area roughly the size of the State of Indiana with a population of about 7,000. The vast majority of the area’s residents are Inupiat Eskimos whose ancestors have inhabited the region for thousands of years. The region offers only limited year-round employment opportunities, particularly in the private sector; in the two years preceding Alaska’s permit decision, the borough’s unemployment rate was the highest in the State.[6]

No one could claim the name of a mine, a dog in an airplane, the demographics of a region, or any of these facts are necessary to interpret the Clean Air Act’s text. Although unnecessary, they are relevant. “Roberts is litigating a classic federalism fight between the states and the federal government. And who knows how a mine fits into the community better than the local and state officials close to the ground?”[7] By using facts to show how unique the area is and how invested local peoples and local government are in the region, it shows a need and a reason why state government is better suited than the federal government to control permitting.

Example 3: A Supreme Court Decision

Look at Justice Jackson’s opinion in United States v. Morissette. The issue was whether a defendant could knowingly convert government property without any criminal intent. After the introductory paragraph, here is the opening:

On a large tract of uninhabited and untilled land in a wooded and sparsely populated area of Michigan, the Government established a practice bombing range over which the Air Force dropped simulated bombs at ground targets. These bombs consisted of a metal cylinder about forty inches long and eight inches across, filled with sand and enough black powder to cause a smoke puff by which the strike could be located. At various places about the range signs read ‘Danger—Keep Out—Bombing Range.’ Nevertheless, the range was known as good deer country and was extensively hunted.

Spent bomb casings were cleared from the targets and thrown into piles ‘so that they will be out of the way.’ They were not sacked or piled in any order but were dumped in heaps, some of which had been accumulating for four years or upwards, were exposed to the weather and rusting away.

Morissette, in December of 1948, went hunting in this area but did not get a deer. He thought to meet expenses of the trip by salvaging some of these casings. He loaded three tons of them on his truck and took them to a nearby farm, where they were flattened by driving a tractor over them. After expending this labor and trucking them to market in Flint, he realized $84.

Morissette, by occupation, is a fruit stand operator in summer and a trucker and scrap iron collector in winter. An honorably discharged veteran of World War II, he enjoys a good name among his neighbors and has had no blemish on his record more disreputable than a conviction for reckless driving.

The loading, crushing and transporting of these casings were all in broad daylight, in full view of passers-by, without the slightest effort at concealment. When an investigation was started, Morissette voluntarily, promptly and candidly told the whole story to the authorities, saying that he had no intention of stealing but thought the property was abandoned, unwanted and considered of no value to the Government. He was indicted, however, on the charge that he ‘did unlawfully, wilfully and knowingly steal and convert’ property of the United States of the value of $84, in violation of 18 U.S.C. s 641, 18 U.S.C.A. s 641, which provides that ‘whoever embezzles, steals, purloins, or knowingly converts’ government property is punishable by fine and imprisonment. Morissette was convicted and sentenced to imprisonment for two months or to pay a fine of $200. The Court of Appeals affirmed, one judge dissenting.[8]

The fact section sets Morissette up for a win.

It begins with a god’s-eye-view of a place, the bombing range. [9] Then it describes things in that place, spent shell casings. Only then is Morissette introduced. We learn he goes to the range for an innocuous purpose, hunting. True, there are signs saying keep out (a bad fact for Morissette), but we already learned the signs are not enforced. All of his alleged criminal acts are summed up in three sentences: he wanted to make some money, he took the casings, and he sold them for $84. Then a paragraph about Morissette’s positive character. And then Morissette’s approach to his actions; he did everything in broad daylight, never thought anything was wrong, never hid it, and cooperated with authorities.

Rather than a chronology, this story is about where, who, and why. It frames Morissette as an upright man with blameless motives.[10] By the end the reader is sympathetic to Morissette, and even wondering why this man was ever arrested. And that is precisely where Justice Jackson wants you before starting his legal analysis.[11]


[1] Stephen V. Armstrong & Timothy P. Terrell, Thinking Like a Writer: A Lawyer’s Guide to Effective Writing and Editing 300 (Practicing Law Institute 3d ed. 2009).

[2] This is a variation of the fact section in the Brief for Defendant-Appellant at 4-15, People v. Bryant, 562/05 (N.Y. App. Div. 2010).

[3] This is a variation of the fact section in the Brief for Respondent at 4-14, People v. Bryant, 562/05 (N.Y. App. Div. 2010).

[4] Brief for Petitioner, Alaska v. Environmental Protection Agency at i, No. 02-658 (U.S.).

[5] Id. at 5.

[6] Id. at 7-9 (citations omitted). This example is courtesy of Ross Guberman, Point Made: How to Write Like the Nation’s Top Advocates 59 (Oxford University Press 2d ed. 2014).

[7] Ross Guberman, “Five Ways to Write Like John Roberts,” https://www.legalwritingpro.com/pdf/john-roberts.pdf.

[8] Morissette v. United States, 342 U.S. 246, 247–50 (1952). This example courtesy of Armstrong & Terrell, supra n. 1 at 117-18, 300.

[9] Armstrong & Terrell, supra n. 1 at 300

[10] See id. at 117.

[11] For more examples of fact sections and storytelling see Armstrong & Terrell, supra n. 1 at 113-118, 296-305.

 

Michael Blasie graduated from the New York University School of Law. He began his career as a commercial litigator and criminal defense attorney in the New York City office of Cooley LLP where he practiced in state and federal trial and appellate courts. After five years he moved to Denver where he worked as a law clerk to the Honorable David J. Richman of the Colorado Court of Appeals before becoming Staff Counsel at Wheeler Trigg O’Donnell, LLP. Michael also serves as a volunteer firefighter for the City of Golden.

Tenth Circuit: Unpublished Opinions, 3/12/2018

On Monday, March 12, 2018, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.

United States v. Keith

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.