December 17, 2018

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A New Approach to Writing Facts, Part I

We are told fact sections should tell a story, as if such advice is self-executing. No one explains how to tell a story. Yes, we tell stories everyday. But when we do, they come out naturally and may not be very good. Writing a fact section is not natural and needs to be good.

Put aside storytelling. Consider a different approach: filmmaking. Think of any scene from a movie you enjoy. Let’s use TOPGUN, because as someone of intelligence and great taste you were probably thinking of it anyway. Why is the main character’s call sign Maverick? Why not Renegade or Creampuff? It’s Maverick because screenwriters chose that name. Just like a costume designer chose aviator sunglasses. And not just any aviators, dark lens aviators instead of silver lens. A set designer chose which planes and how many to have in the background. The director chose to have Tom Cruise on the left and shoot the scene from a high angle. And we are all indebted to the music director for hiring Kenny Loggins to play Danger Zone.

In every scene dozens of people made decisions. Those decisions shaped the audience’s perception and told the story. Those decisions are why Darth Vader’s cape is not yellow, why the ending of the Usual Suspects surprised you, and why you knew Scar was a villain before he killed Mufasa.

In a fact section you are the cast and crew. You control every decision. It’s empowering; you don’t need a special effects budget and there is no producer to answer to. Yet most attorneys fall short because most attorneys have no training in storytelling.

Part I of this article is Directing 101 For Attorneys. It explains what stories can do in a brief and how to create them. Part II (to debut next month) applies this advice to examples.

Rethink What Fact Sections Can Do For You

“If you let me state the facts, I will let you argue the law—and I will win.”[1]

Before you write a story you need goals: (1) Identify the facts a court needs to decide in your favor, (2) provide the relevant procedural background, (3) preempt facts that favor the other side, and (4) for appeals, discuss the lower court’s ruling. Most fact sections have these goals. Most fact sections achieve these goals. And most fact sections stink.

Why they stink is less clear. When discussing fact sections, judges often advise attorneys to give them a reason to turn the page; “it is not unconstitutional to be interesting.”[2] Fair enough. But with large caseloads and billing concerns, writing entertaining briefs for an audience paid to read briefs is not a priority for most attorneys. A more compelling reason is that these four goals do not advance your argument.

A good fact section gives context and focuses on the relevant facts so “the legal analysis and result look inevitable.”[3] “From the reader’s perspective, your legal analysis seems the only possible means of reaching a just result on the basis of the facts.”[4] The four goals above do not accomplish this. You need more. Fact sections should prime a judge to favor an argument or side. They can elicit sympathy for a character or raise questions about behavior. This is where stories come in.

How to Craft A Story

If you have not been to film school, creating stories is daunting. Below is the best explanation I have come across, which comes from Stephen Armstrong’s and Timothy Terrell’s Thinking Like a Writer.[5]

The basic elements of a story are characters, the opening situation, the closing situation, and the movement from the opening to the closing.[6] “With each [element], your job is to create inferences that point towards favorable conclusions about the nature of the acts and actors that make up the story.”[7] These inferences are powerful. The power of fact sections is that “[t]hese very different stories were created from the same facts by making different decisions about which to use and how to organize them.”[8]

Like a film crew, four choices shape these elements into a story:

  1. The Start: Where does the story begin?
  2. The End: Where does the story end?
  3. Perspective: Through whose eyes do we see the events unfold?
  4. Details: Which details do we include and where do we include them? Which details do we omit?[9]

The Start

Beginnings are critical.

Sometimes stories begin by introducing a character, the world from his or her perspective, and that character’s motives for later actions. Han Solo, James Bond, Willy Wonka, George C. Scott’s General Patton, Indiana Jones, and Full Metal Jacket’s Gunnery Sergeant Hartman all have memorable introductions that prime the character’s later actions. The same principles apply to legal briefs. For example, a criminal trespass case might start with the defendant desperate, starving, and shivering, or with a family returning home to find a broken window.[10]  A trade secrets case might begin with a company introducing a revolutionary product for sale only to watch its chief scientist go to a competitor that introduces a similar product six months later. But the opposing brief might start years earlier with the competitor’s research and development team, and end with the new employee coming on board during the final stages of a product set for launch.

Other times effective stories start with context, not characters. Science fiction and fantasy movies do this all the time. There is no alien in the opening to Alien. Rather we see a giant ship with a skeleton crew floating in the void of space. The introduction establishes isolation, the last place you would want to encounter an alien with acid for blood. Lord of the Rings opens with a history of alliances and conflicts between humans, elves, and orcs; it introduces the ring but most of the main living characters come later. Bring this to your brief. Although we write about the real world, often it is a foreign world. Whether it is life in a gang-controlled neighborhood, a regulatory landscape, or how an industry works, there is a unique context. Armstrong and Terrell describe the case of a corporation accused of violating environmental regulations controlling pollutants released under certain weather conditions. Most writers would lead with what happened on the day of the violation. But a stronger opening might begin by describing how difficult it is to predict the weather.[11]

In most cases a story’s start should differ between sides. Imagine a car accident. Depending on who is being blamed, the story might begin with a description of the driver and his behavior (a character-based introduction), or a description of the intersection and weather (a context-based introduction).[12]

The End

The end of a story should reinforce the point. The criminal trespass case could end with a frightened defendant hiding in the bushes and being arrested, or with an intruder running out of a home.[13]

The end may go beyond the events that led to the lawsuit. It could lay the foundation for damages. So a trade secrets plaintiff might describe the plummeting sales or number of lost customers.  A victim’s hardships, the environmental impact, or reputational damage are all ways to end. Another option is the case’s effect on the client’s industry or the legal landscape.

Perspective

Conveying a perspective has two parts: who and how.

Who. Choose whose perspective to tell the story from. Often we choose one of the classic main characters like the plaintiff, defendant, or victim. But you don’t have to. The perspective could be from someone uninvolved with the events, like an expert witness or a detective. And it could be from someone on the other side of the case. In a case pivoting on intent, a prosecutor might tell the story from the defendant’s perspective to highlight the time he had to plan his actions; a plaintiff might do the same to show the warning signs before the negligent behavior.

Or the perspective could be from no person. You might adopt the legislature’s perspective to discuss a statute’s intent, or an agency’s perspective to describe a regulatory scheme. You could use a god’s-eye-view of the world to describe context, like a corporation’s organization or how a manufacturing process works.

Also consider whether the perspective will be consistent or whether it will change. You might begin with a god’s-eye-view of the world and then shift to a person’s perspective entering this world. Or you might start with the agency’s perspective in creating a regulatory scheme and then discuss your client’s view.

How. For most of us, to tell the client’s perspective we state the facts that client knew per that client’s testimony, deposition, sworn statement, etc. It looks likes this:

John became CEO of the company in 2001. The company entered the contract in January. The contract said all material facts were disclosed. It mentioned a $1 million debt. It did not mention a pending $3 million lawsuit. But John did not know about the lawsuit.

Stating facts your client knew does not necessarily tell the story from that client’s perspective. In fact, this example has three different perspectives.

Professor George Gopen explains that most people read a sentence as the story (i.e., perspective) of the main clause’s subject.[14] So “Jack loves Jill” is Jack’s story while “Jill is loved by Jack” is Jill’s story.[15] “Keep the grammatical subjects of your sentences the same for as long as you are telling that particular story. Then, by changing whose story the next sentence is, you will (silently) convey to your reader” a shift to a new story.[16]

So sentence structure defines perception. That is why in the above example there are three perspectives: John’s, the company’s, and the contract’s.

Avoid changing perspectives unintentionally. The compulsion to vary sentence structure (courtesy of our elementary school teachers) works against us. Rest assured, there are many ways to vary sentence structure while keeping the subject of the main clauses consistent. For example, both of these sentences are the defendant’s perspective:

The defendant chose to refuse the goods, even though the plaintiff delivered them on time.

Even though the plaintiff delivered the goods on time, the defendant chose to refuse them.[17]

Details

Identify the Necessary Facts

For a fact section you must know the law. The law identifies which facts a court must consider. For precisely this reason, many suggest writing the argument section first and the fact section last.[18] Public policies and equity may inform this decision too.

One caveat. Some hold Judge Aldisert’s view that, at least in an appellate brief, any fact you use in an argument section must be in the fact section.[19] The reason is that the fact section gives a court “an objective account of what occurred before the twist of advocacy is added to the cold facts.”[20] Perhaps in a single issue brief Judge Aldisert’s positon holds true. But modern writers have modified this approach.

“Do not burden the opening statement of facts with details relevant to a specific argument that you will develop in full later. Just state the basics.”[21] If your brief raises multiple unrelated issues, having mini-fact sections near each argument is easier for readers. Think of an appellate brief that raises pretrial, trial, and post-trial issues. The reader gets to the pretrial issue fact section on page four but does not see its corresponding argument section until page eighteen. Between those sections are pages of unrelated facts. Having a pretrial issue fact section right before its argument section makes your reader’s life much easier.

Cut Irrelevant Unnecessary Facts

A universal gripe is that fact sections contain too many facts.[22] But “too many” is the wrong phrase; it is not a numbers issue. It’s an issue with misleading a reader.

Fact sections cause problems when they suggest a fact is important when it is not. Readers assume you included a fact for a reason. The longer the reader searches for that reason the more confused the reader becomes. If a reason never comes, the reader gets confused and frustrated.

Here is a good example. At a recent CLE, one judge remarked that when she reads that police executed a search warrant at a particular address, she immediately begins to think the police searched the wrong home because why else would the address be relevant. When that is not the case, she is left wondering why the lawyer told her the address.[23] For precisely the same reason, dates, times, quotations, addresses, procedural history, locations, dollar amounts, weights, quantities, and proper names of people, places, entities, and pleadings are often irrelevant.[24]

A related problem is that fact sections fail to highlight key facts. If there are nine key facts and you tack on eighty more, those nine facts do not look essential. “Cutting clutter isn’t just about saving words. It’s also about turning down the noise so the signal shines through.”[25]

Applying these guidelines, look at Judge Posner’s edits to an opinion by Judge Wald.[26]

 

 

Judge Wald’s Opinion

 

 

Judge Posner’s Edit

 

Appellant Robert Morris was convicted of possession of cocaine with intent to sell, in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(B)(iii), and for using or carrying a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1). He appeals both convictions on the ground that the evidence was insufficient to support either charge. We reject both challenges and affirm the judgment below.[27] A jury convicted the defendant of possession of cocaine with intent to sell it, and of using or carrying a firearm during and in relation to a drug offense. The judge sentenced him to 130 months in prison.[28]
On December 11, 1990, officers of the Metropolitan Police Department executed a search warrant on a one-bedroom apartment at 2525 14th Street, N.E., in the District of Columbia. Upon entering the apartment, the officers found appellant seated on a small couch in the living room; they detained him while they searched the apartment. The search produced two ziplock bags containing a total of 15.7 grams of crack cocaine divided among 100 smaller ziplock bags, $500 in cash, empty ziplock bags, razor blades, and three loaded and operable pistols. Two of the guns were under the cushions of the couch on which appellant sat; the third was in a nightstand in the bedroom. The cocaine and the cash were in an air duct vent in the ceiling of the bedroom. In the drawer of a dresser in the bedroom, the officers found two birthday cards; appellant’s name was on the envelope of one, and the other was for a “son,” signed “Mr. and Mrs. B.G. Morris” and dated November 30, 1990. No address was on either. In a hallway closet, the officers found a laundry ticket dated December 3, 1990, and bearing the name “E. Morris.” There were no identifiable fingerprints on any of these items. The officers arrested appellant, who was indicted on two counts: possession with intent to distribute in excess of five grams of cocaine base and using or carrying a firearm in relation to the possession offense.[29] Police had a warrant to search a one-bedroom apartment. Upon entering they found the defendant sitting on a small couch in the living room. The search revealed drugs, cash, and drug paraphernalia, and also three pistols—two under the cushions of the couch and the third in a nightstand in the bedroom.[30]

 

Once you identify the necessary facts and cut all the excess facts, congratulations—you now have a timeline. But not a fact section.

Add Relevant Unnecessary Facts

Conventional advice strips a fact section to only what a court needs to rule.[31] This advice goes too far.

Think of a summary judgment motion. Think of that numbered list of materially undisputed facts. That list is not a story. If you delete the numbers and group the list into paragraphs, it is still not a story. So a fact section needs more.

Great fact sections contain helpful unnecessary facts. The difference from the previous step is that these, albeit unnecessary, facts have a purpose, a purpose that furthers the story even if it does not further the legal argument.

This concept is not new. We see it in judicial opinions. “I doubt it’s a coincidence, for example, that in the U.S. Supreme Court’s landmark death-penalty cases in the 1970s and ’80s, the justices who voted against death sentences said nary a word about the underlying crimes, while those who upheld death sentences sometimes sounded like they were writing smut fiction.”[32]

There is another role for relevant unnecessary facts.  Some facts neutralize a tangent on the reader’s mind. For example, you might explain a rare point of law, like how although the defendant acknowledged his prior convictions when he testified trial, that testimony is inadmissible at a post-trial habitual criminal sentencing hearing to prove those convictions.[33] Without this fact, a court may be left wondering why a defendant disputes the existence of prior convictions he admitted to.

Organization

“[S]ome writers assume that, if they organize facts chronologically, they are by definition telling a story. That is a damaging mistake.”[34]

Choosing which facts to include and exclude is not enough. Equally important is where the facts fit into the story.

Begin by choosing the key facts in your story. Then choose an organization that highlights those facts. For chronologies, the key fact is the sequence of events. If the case centers on who knew what when, or who did what first, chronologies work well. But be careful because chronologies deprive you of control. “Because the writer is locked into his chronological default, however, he has no choice but to insert the key [] facts wherever the chronology permits, blurring the emphasis they deserve.”[35] They also tend to “run[] out of control and drag[] irrelevant facts along.”[36]

Other kinds of key facts do not depend on sequence. Armstrong and Terrell frame these alternatives as who, what, where, and why. Who: people and descriptions of them, their motives, or their credibility. [37]  What: a thing, like documents and what they say, who they were sent to, or how they were drafted; a manufacturing process; a person’s mental state.[38] Where: a location, the conditions of an area; the weather. Why: an explanation or motive like alcohol, jealousy, greed, wet roads.[39]

These facts are best highlighted without a chronology. Just because an organization is not a chronology does not mean it is told backwards or out of order. It just means sequence and timing do not control the story. Such stories might have timeless sections that discuss context, like a corporate structure or the ecology of a marsh polluted by an oil spill.[40] They might have lengthy explanations about people, companies, or contracts before moving on to an event. Or they might explain the story out of order; they might begin at the end and then explain what led up to that event. They might switch back and forth between an event and the past (like The Godfather Part 2).

Conclusion

Fact sections are the most underused part of briefs. If you do not tell a story and if you do not tell the right story, your brief is weak. Elevate your fact section and you will elevate your brief.

Channel your inner filmmaker to craft the story that advances your argument and sets you up for success. The next time you read a brief, think about whether the fact section helps the argument. Analyze it from the director’s chair: where does the story start, where does it end, who is telling the story, which details does it include and omit, and how it is organized.


[1] George Gopen, “Controlling the Reader’s Perception of Your Client’s Story,” 38 Litigation 4, at 18 (Summer/Fall 2012), available at www.georgegopen.com/uploads/1/0/9/0/109073507/litigation_5_palsgraffian_perspectives.pdf (attributing quotation to Clarence Darrow without citation).

[2] Ruggero J. Aldisert, Winning on Appeal: Better Briefs and Oral Argument 168 (National Institute of Trial Advocacy 2d ed. 2003).

[3] Stephen V. Armstrong & Timothy P. Terrell, Thinking Like a Writer: A Lawyer’s Guide to Effective Writing and Editing 111 (Practicing Law Institute 3d ed. 2009).

[4] Id.

[5] See also Brian J. Foley & Ruth Anne Robbins, “Fiction 101: A Primer for Lawyers on How to Use Fiction Writing Techniques to Write Persuasive Fact Sections,” 32 Rutgers L. Rev. 459 (2001).

[6] Armstrong & Terrell, supra n. 3. at 299. See also Aldisert, supra n. 2 at 168 (stories have characters, conflict, resolution, organization, a point of view, and a setting).

[7] Armstrong & Terrell, supra n. 3. at 299.

[8] Id. at. 299.

[9] Id. at 300.

[10] See id. at 298; 300.

[11] Id. at 300.

[12] See Armstrong & Terrell, supra n. 3 at 113-14.

[13] Id. at. 300 (“notice how the impact of the arrest differs dramatically then it comes at the end rather than the beginning. If the rest of the story has been carefully constructed, the arrest seems cruel and unjust, not a presumption to be overcome.”).

[14] George Gopen, Whose Story is This Sentence? Directing Readers’ Perceptions of Narrative, 38 Litigation 3, Spring 2012 at 17-18,

available at www.georgegopen.com/uploads/1/0/9/0/109073507/litigation_4_whose_story.pdf.

[15] George Gopen, “Controlling the Reader’s Perception of Your Client’s Story,” 38 Litigation 4, at 18, (Summer/Fall 2012), available at www.georgegopen.com/uploads/1/0/9/0/109073507/litigation_5_palsgraffian_perspectives.pdf.

[16] Id. at 19.

[17] Gopen, supra n. 14 at 17-18.

[18] See Armstrong & Terrell, supra n. 3 at 297 (“To write a persuasive story, you have to think carefully about the framework of plot and character around which the facts will cohere.”). See also id. at 354 (“Present facts with an eye towards the law” by stating only the facts you need, addressing material facts harmful to your argument, and avoiding argumentative characterizations of the facts).

[19] Aldisert, supra n. 2 at 169-70.

[20] Id. at 169.

[21] Armstrong & Terrell, supra n. 3 at 354.

[22] Armstrong & Terrell, supra n. 3 at 297 (“The fact section of the brief or memorandum of law becomes an agglomeration of data that is not just unpersuasive, but downright painful to read.”).

[23] Elizabeth Harris, Judge, Colorado Court of Appeals, Presentation at Appellate Practice Update 2017 (CLE in Colo., Inc. Nov. 29, 2017).

[24] Ross Guberman, Point Taken: How to Write Like the World’s Best Judges 44-57 (Oxford University Press 2015) (applying this advice to judicial opinion writing); Ross Guberman, “Five Resolutions for Litigators,” www.legalwritingpro.com/articles/five-resolutions-litigators/.

[25] Ross Guberman, Point Taken: How to Write Like the World’s Best Judges 51 (Oxford University Press 2015) (applying this advice to judicial opinion writing). See also Armstrong & Terrell, supra n. 3 at 301-03 (showing how too much detail prevents key facts from getting the attention they disserve).

[26] These examples come from Guberman, supra n. 25 at 45-47.

[27] United States v. Morris, 977 F.2d 617, 618 (D.C. Cir. 1992).

[28] Guberman, supra n. 25 at 45-47.

[29] Morris, 977 F.2d at 619.

[30] Guberman, supra n. 25 at 45-47.

[31] See also Guberman, supra n. 25 at 56; 77 (“if your legal analysis does not turn on one of these details, consider purging them from your fact or background statement . . . .”) (applying advice to judicial opinion writing).

[32] Id. at 60.

[33] C.R.S. § 18-1.3-803(5)(b) (2017).

[34] Armstrong & Terrell, supra n. 3 at 120. But see Aldisert, supra n. 2 at 169-70 (recommending always explaining facts chronologically). The dangers of default organizations applies to other sections of brief writing too. In fact, Armstrong and Terrell have a chapter titled “The Dangers of Default Organizations” discussing common defaults like tracking the history of your research and thinking, or tracking your opponent’s organization. Armstrong & Terrell, supra n. 3 at 87-110.

[35] Armstrong & Terrell, supra n. 3 at 113.

[36] Id. at 111. “[T]he writer usually seizes onto chronology as a drowning person onto a life preserver. But a chronology is not a story. Nor can you turn it into one by ‘spinning’ or characterizing the facts, or by adding a few more heart-wrenching details.” Id. at 297.

[37] See id.

[38] See id.

[39] See id.

[40] See Armstrong & Terrell, supra n. 3 at 111-12.

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.

Colorado Supreme Court: Announcement Sheet, 2/20/2018

On Tuesday, February 20, 2018, the Colorado Supreme Court issued one published opinion.

Pernell v. People

The summary of this case is forthcoming.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: Unpublished Opinions, 2/20/2018

On Tuesday, February 20, 2018, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

Chamberlain v. Chamberlain

Inge v. McClelland

United States v. Mulay

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