July 22, 2018

The Grammar Dilemma: Which Rules Are Worth Knowing

“None of you are guilty” or “None of you is guilty”? Can I use “since” as a synonym for “because” or can I only use it to reference time? One space or two between sentences? Is it email or e-mail? Some people have strong feelings about these kinds of questions. But many exasperate “who cares?!”

We are lawyers. We are busy. We have limited time. When is it worth perusing a six-inch thick book to find a grammar rule? Almost never.

Nonetheless, to write clearly you need to understand the ambiguity of English grammar.

The Next Person That Recommends Strunk & White . . .

Since freshman orientation people have always told me to worship Strunk and White’s Elements of Style. I’m pretty sure 98% of those people have never read the book. I’m equally sure 99% of the U.S. population has not. These statistics are not backed by data, just my gut. But in fairness, most of our grammar sense comes from our gut—if this phrase “sounds” right it must be right. Turns out, the Gut Theory of Grammar works pretty well. It works pretty well because there are no grammar rules. Let’s circle back to the Elements of Style.

Most people recommend the Elements of Style because other people recommended it to them. This daisy chain advice is so long no one remembers where it started. But surely the book gained credence for a reason.

Who were Strunk and White? They were co-chairs of the National Commission of American English created by President Nixon to develop consistency in how American students learned the language. Just kidding. There is no commission. Unlike France, the United States has no official body that determines language rules.[1] Strunk and White are two people who sat down to write a book about grammar. Strunk was a college professor who authored the original edition around 1919.[2] White, who authored Charlotte’s Web, revised the book in 1959.[3] Neither had unique authority to assert anything was or was not a rule.

But surely the wide acceptance of the Elements of Style gave it credence after-the-fact? Nope. It’s one thing to wear a t-shirt with a nerdy grammar pun like “Poor Grammar Makes Me [sic].” It’s a different level to publish an article in the Chronicle of Higher Education titled “50 Years of Stupid Grammar Advice” tearing into Strunk & White. But that’s what Professor Pullum did.[4] He describes Strunk & White as “grammatical incompetents” and their advice as ranging “from limp platitudes to inconsistent nonsense” that has “significantly degraded” students understanding of English.[5] Ouch. And he’s not alone. Others have called the book unsystematic, chaotic, and unhelpful.[6] But, to be clear, the book still has supporters.[7] And not everyone agrees with Professor Pullum.[8]

It’s Much Worse Than You Think

Even if the Elements of Style is not perfect (and presumably no other book is), the legal community might silently agree on certain rules. Putting aside obscure stylistic choices, surely we agree on essentials like what a word means? Buckle up.

Since time immemorial teachers and bosses pounced on subordinates for confusing “literally” and “figuratively.” Something is literally true when it can and did happen. It is figuratively true when it cannot or did not happen. So “When I heard the news my heart stopped” is figuratively true, unless after hearing the news my blood stopped circulating in which case it is then literally true. Only not. Consult a dictionary to discover literally and figuratively are sometimes synonyms. Merriam Webster has a persuasive article and video defending the definitions and explaining how authors can use “literally” hyperbolically to mean “figuratively.”[9] There’s an indie romantic comedy here where former antonyms become synonyms.

Here’s another skull-buster. Most of us bleed from the ears when we hear the word “irregardless.” A Pavlovian reflex shocks our system with feelings of valley-girl bastardized English. But oh yes, you guessed it. It is a word. In fact, one of Merriam Webster’s lexicographers (the people that write dictionaries) made a video defending it.[10] “Irregardless” means “empathically regardless.”[11] Oddly, the lexicographer recommends not using the word because so many people think it is not a real word.[12]

English grammar is a mess.

What to Do

We want our readers to find us credible and to understand what we write. But grammar rules are unclear. And we are not going to attach an appendix showing we correctly used a comma on page six.

Begin by accepting the inevitable. You usually have no idea what grammar rules your audience subscribes to. A judge might know a rule, not know a rule, or know a rule that is not a rule.

Next, adapt to your audience. To write clearly you need to know what grammar rules exist—real rules, discredited rules, misunderstood rules, all rules. Even with maximum effort, you cannot avoid breaking some rule believed by someone somewhere. But, with this understanding you can ensure your writing is clear.

When a Grammar Rule is Unclear, Strive For Clarity

When your writing implicates an unclear grammar rule, prioritize clarity. Consider the that/which rule:

The Safety Instructor asked the student to get the gas tank, which has red tape on it.

The Safety Instructor asked the student to get the gas tank that has red tape on it.[13]

In the first sentence there is one tank and it has red tape. [14] “Which” introduces additional information. [15] So, if the student were just told “Go get the gas tank” the student would return with the same tank because only one exists. [16] By contrast, in the second sentence “that” introduces essential information; there are multiple tanks and the instructor wants the one with red tape.[17]

But you cannot count on your reader taking away this distinction. Your reader may not know the rule or may have the rule reversed. So if it is important to understand there were multiple tanks and the instructor asked only for the one with red tape, you need to do more.

You have a few options. You can avoid the that/which rule by rewriting the sentence more explicitly: there were eight tanks and the instructor asked for the one with red tape. Or you can add a clarifying sentence: When the student went into the storage room he saw a pile of tanks and grabbed the one with red tape.

Ultimately, awareness of ambiguous grammar cannot prevent a reader from enforcing a random grammar belief. But that awareness can help us ensure the reader gets our message.

If Most Judges Believe a Rule, Follow It

Recall the figuratively/literally and irregardless examples. There we learned some grammar beliefs are incorrect. But you being correct according to an external source is irrelevant to your case. Write for your audience. If the court has certain grammar preferences, follow them.

Think of a basic rule indoctrinated into you with no reasoning behind it. A rule like capitalize the first letter of each sentence. if you stopped capitalizing those letters, would it confuse anyone? would readers misinterpret your words? nope. but everyone would notice and everyone would think you are wrong. the historical reason for this rule doesn’t matter. even if you found a source saying it is unnecessary, the result will only hurt you.

Although few courts publish elaborate style guides, you can discern grammar preferences from court opinions, former law clerks, and CLEs with the judges. Use that information to preserve credibility and avoid disruption.

Conclusion

When it comes to grammar, write for clarity not accuracy.


[1] George D. Gopen, The Sense of Structure: Writing From the Reader’s Perspective 196 (2004).

[2] William Strunk Jr.; E.B. White, The Elements of Style xiii-xviii; 87 (4th ed. 2000); Geoffrey K. Pullum, “50 Years of Stupid Grammar Advice,” The Chronicle of Higher Education, p. 1 (April 17, 2009), available at http://www.lel.ed.ac.uk/~gpullum/50years.pdf.

[3] Strunk &White, supra n. 2 at 1; Pullum, supra n. 2 at 1.

[4] Pullum, supra n. 2 at 1

[5] Id. Pullum didn’t let it go after only one article: Geoffrey K. Pullum, “The Land of the Free and The Elements of Style,” 26 English Today 2, 102 (June 2, 2010), available at http://www.lel.ed.ac.uk/~gpullum/LandOfTheFree.pdf.

[6] Tom Goldstein and Jethro K. Lieberman, The Lawyers Guide to Writing Well 9-10 (3d ed. 2016).

[7] See, e.g., “The 100 Best Nonfiction Books: No. 23 The Elements of Style by William Strunk and EB White (1959),” The Guardian, available at https://www.theguardian.com/books/2016/jul/04/100-best-nonfiction-books-all-time-elements-style-william-strunk-eb-white.

[8] To see how some of Pullum’s critiques may be overstated, see Ross Guberman, “Did Strunk & White Give “Stupid Advice?,” available at https://www.legalwritingpro.com/articles/strunk-white-give-stupid-advice/ (last visited May 20, 2018).

[9] Merriam-Webster Dictionary, “Did We Change the Definition of ‘Literally’?,” https://www.merriam-webster.com/words-at-play/misuse-of-literally (last visited May 20, 2018); Merriam-Webster Dictionary, “Literally- Merriam Webster- Ask The Editor,” https://www.youtube.com/watch?v=Ai_VHZq_7eU (last visited May 20, 2018).

[10] Business Insider, “‘Irregardless’ is a real word – you’re just using it wrong,” https://www.youtube.com/watch?v=bEJ2HF3xuFk (last visited May 20, 2018).

[11] Id.

[12] Id.

[13] This is a variation of the rake example provided in Gopen, supra n. 1 at 5.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

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.

Forging New Writing Conventions: Treat Active and Passive Voice Equally

Seemingly everyone loves critiquing passive voice. Haters have to hate.

The common advice to “avoid passive voice” is wrong. Actually, it’s worse than wrong. It’s a pyramid of wrongs. The advice, as a conclusion, is wrong. So are its premises. Most advice-givers misunderstand what passive voice is. And they misunderstand its advantages and disadvantages. Much of the time, people heard this advice before, never thoughtfully considered it, and repeat it without much thought. So it’s closer to being a rumor than it is to being good writing advice. Open your mind for the next five minutes and let’s fix this.

Even if you know nothing about passive voice, “avoid passive voice” facially makes little sense. It can only have two effects. Some listeners apply it wholesale without discretion, mechanically searching and destroying passive voice. For them, the advice strips away judgment and any notion passive voice could ever help. To other listeners the advice makes no sense. You don’t have to be an evolutionary linguist to know the passive voice must exist for a reason, and we use it when we speak without any problems. These listeners ignore the advice, never develop judgment, and never learn when passive voice helps and when it hurts. Both outcomes are unfortunate and avoidable.

The best advice is much more complicated. Fortunately, as lawyers we specialize in complicated.

What is Active Voice and Passive Voice?

If you are confident you know the difference between active and passive voice then you should be equally confident you are probably wrong. Let’s start with the easy part.

English has two voices: active and passive. In the active voice, the subject performs the verb’s action.[1] In the passive voice, the verb’s action is performed on the subject.[2] These definitions are more clear when you compare sentences written in each voice:[3]

 

Active Passive
The teacher told us to use the active voice. We were told to use the active voice.
The police questioned the suspect. The suspect was questioned.
I made a mistake. Mistakes were made.

 

Critically, the passive voice is not the use of particular verbs. Many people try to spot the passive voice by looking for variations of the verb “to be” like “was,” “were,” “is,” “would,” or “had been.” Wrong. This sentence uses active voice: “He was unhappy the provision of services had been so slow.”[4] Don’t feel bad. Everyone does it. Take this example from the New Yorker describing Bernie Madoff’s sentencing:

Two sentences later, Madoff said, “When I began the Ponzi scheme, I believed it would end shortly and I would be able to extricate myself and my clients from the scheme.” As he read this, he betrayed no sense of how absurd it was to use the passive voice in regard to his scheme, as if it were a spell of bad weather that had descended on him.[5]

Where precisely is the passive voice here? “It would end” and “I would be able to” are active voice.

The best way to find the passive voice is to track the definition above: when the verb does not modify the doer. If you want to be more specific, look for variations of “to be” “to get” or “to have” plus a past-tense verb (a past-participle to be precise). [6]

The Classic “Advantages” of the Active Voice

Card-carrying members of the active voice fan club praise it as more concise, concrete and not abstract, lively, and the default expectation of readers.[7] None of these are always true. As a simple example “The motion was denied”(passive) is four words when “The court denied the motion” (active) is five.

What is true is that the active voice is, by definition, clear about who the actor is. When that feature is important to you, use it.

Which is Better: Active or Passive?

Neither. Neither is superior or inferior to the other. There is no rule favoring one, with delineated exceptions permitting the other. There is no presumption or preference.

Passive voice and active voice are two options. They serve different purposes. Use whichever serves your purposes.

When to Use Passive Voice

“If you always avoid the passive, you sacrifice one of the subtlest, most versatile tools the English language affords us.”[8] Sometimes passive voice is helpful, like in these somewhat overlapping scenarios:[9]

The actor is obvious: [10]

“The motion was denied.” We know a court denied it. “Defendants are entitled to summary judgment when . . .” We know the law is what entitles a party to summary judgment under certain circumstances. No one is confused.

The actor is irrelevant or distracting:[11]

“The subpoena was served January 19th.” By who? Phil, Barbara, Subpoena Services Inc.? Does it matter? If what matters is when the subpoena was served then there is no need to introduce a new and irrelevant character to your story.

The actor is unknown:[12]

“Stonehenge was built around 2200 BCE.” Or, if your defense is that the crime occurred but the defendant did not do it, “The victim was murdered later that night.”

To emphasize the action over the actor/To tell the story of the recipient of actions:[13]

In a suppression motion you write “Mr. Smith was ordered to freeze and hand over identification, then his suitcase was searched, and then he was handcuffed.” Who did these things? Government actors. Which government actors? The defense does not care. Whether it was Officer Jones or Agent Smith is irrelevant. The defense neither needs nor wants the court to keep track of that. Passive voice keeps the focus on the defendant and things being done to him.

For the same reason a tort plaintiff’s story might read “Stevens was told it was safe by the defendant. Stevens was told it was legal by the defendant. Stevens was told he could trust the defendant. Stevens was lied to by the defendant.”[14]

This concept can be a bit tricky. But it is perhaps the most important voice decision an author makes. Passive voice emphasizes different actors in your story than active voice. George Gopen provides this helpful illustration:

Smith had notified Jones on the morning of April 7 concerning the lost shipment. (emphasizes Smith’s actions)

On the morning of April 7, Jones had been informed of the lost shipment by Smith. (emphasizes Jones’s knowledge)

The lost shipment had been disclosed by Smith to Jones on the morning of April 7. (emphasizes moment of lost shipment)[15]

This principle can also help when one subject is the recipient of multiple unrelated actions. “Securities agreements are sophisticated contracts. They are usually drafted by specialized attorneys. They are subject to particular regulations. They should only be signed after a careful read.” The passive voice keeps the focus on securities agreements.

To connect one sentence with the next sentence:[16]

“The committee presented the award to Tom. Tom was arrested the next day.”[17] In this couplet the direct object of the first sentence becomes the subject of the next.

To emphasize the end of a sentence.

“When he walked through the door, the victim was already dead.”[18]

To create abstraction:

“In the eyes of the law, all persons are created equal.”[19]

For irony:

“The passive voice should not be used.”

Conclusion

Don’t prefer or avoid passive voice. Don’t prefer or avoid active voice. They have different effects. Choose the voice that suits your needs.


[1] “Active,” Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/active (last visited May 15, 2018).

[2] “Passive,” Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/passive (last visited May 15, 2018).

[3] These examples are from “5 Writing Rules Destroyed By The Dictionary,” Merriam-Webster Dictionary (last visited May 15, 2018), https://www.merriam-webster.com/words-at-play/5-writing-rules-destroyed-by-the-dictionary/never-use-the-passive-voice.

[4] Ross Guberman, “Are You Passive-Aggressive?,” Legal Writing Pro (last visited May 15, 2018), https://www.legalwritingpro.com/articles/are-you-passive-aggressive/.

[5] Nancy Franklin, “The Dolor of Money,” The New Yorker (March 23, 2009), https://www.newyorker.com/magazine/2009/03/23/the-dolor-of-money. See Jan Freeman, “What We Get Wrong About the Passive Voice,” The Boston Globe (March 22, 2009), http://archive.boston.com/bostonglobe/ideas/articles/2009/03/22/active_resistance/ (pointing out error in New Yorker article).

[6] Guberman, supra n. 4; “Active and Passive Voice,” Wheaton College (2009), https://www.wheaton.edu/academics/services/writing-center/writing-resources/active-and-passive-voice/.

[7] See Bryan Garner, Legal Writing in Plain English 36 (2d ed. 2013); Richard Wydick, Plain English For Lawyers 27-31 (5th ed. 2005).

[8] George D. Gopen, The Sense of Structure: Writing From the Reader’s Perspective 153 (2004).

[9] See also id.; George Gopen, “Who Done It? Controlling Agency in Legal Writing- Part I,” 39 Litig. 2 (Spring 2013), available at https://www.georgegopen.com/uploads/1/0/9/0/109073507/litigation_7_controlling_agency_pt2.pdf; “Active and Passive Voice,” supra n. 6.

[10] See generally Tom Goldstein and Jethro K. Lieberman, The Lawyers Guide to Writing Well 144 (3d ed. 2016).

[11] Wydick, supra n. 7 at 31. Accord Goldstein & Lieberman, supra n. 10 at 144.

[12] Goldstein & Lieberman, supra n. 10 at 144.

[13] George Gopen, “Why the Passive Voice Should be Used and Appreciated- Not Avoided,” 40 Litig. 2 (Winter 2014), available at https://www.georgegopen.com/uploads/1/0/9/0/109073507/litigation_10_why_the_passive_should_be_used.pdf; Goldstein & Lieberman, supra n. 10 at 144-45.

[14] Gopen, supra n. 13.

[15] Id.

[16] Goldstein & Lieberman, supra n. 10 at 144-45; Gopen, supra n. 8 at 65-70.

[17] See Wydick, supra n. 7 at 31 (using a variation of this example).

[18] Id. (using a variation of this example).

[19] Id.

 

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.

Forging New Writing Conventions: Parentheticals (And How We Use Them)

Putting citations after sentences sacrifices readability for credibility. The convention has critics but is here for the immediate future.[1] Its sister convention is putting parentheticals after citations. This convention rarely gets any discussion. It should.

When to Use Parentheticals

Every law student learns to use parentheticals. They take different forms. Often they are incomplete sentences explaining a point about the source, usually starting with a present participle—an “ing” word like “holding,” “finding,” or “concluding.” We use them often. Why?

Any answer includes a need to convey information about the source. But why convey that information in a parenthetical? This is the question you need to answer before using one.

There is a difference between each of the following:

“Summary judgment is only appropriate if the moving party establishes that no disputed material facts exist.” People In Interest of S.N. v. S.N., 2014 CO 64, ¶ 16.

People In Interest of S.N. v. S.N., 2014 CO 64, ¶ 16. (“Summary judgment is only appropriate if the moving party establishes that no disputed material facts exist.”)

Summary judgment is only appropriate when there are no disputed material facts. People In Interest of S.N. v. S.N., 2014 CO 64, ¶ 16.

People In Interest of S.N. v. S.N., 2014 CO 64, ¶ 16 (summary judgment is only appropriate when there are no disputed material facts).

When you include a parenthetical you make a series of choices. First, you choose to include rather than exclude information. Second, you decide how to phrase the information, either quoting, paraphrasing, or a little of both. Third, you determine where to put the information, either in the main text before the citation or in a parenthetical after the citation. That placement has consequences.

Those consequences come from how we read briefs. We all learn to write using parentheticals. But we do not necessarily learn to read parentheticals, or at least not to read them how the writer intends.

Here’s the writer’s perspective. The information is important enough to go in the brief, and belongs at the source’s hip.

But this placement has other consequences to the reader. The parenthetical is separate the main text. Because it stands apart, the reader must connect the main text information and the parenthetical information. A parenthetical placement may also suggest the information is less important than the main text. Indeed, part of Bryan Garner’s argument for putting citations in footnotes is that important authorities should be named and discussed in the main text, and “discussion of governing and persuasive authorities is enhanced because it can no longer be buried in parentheticals following citations.”[2] Plus, a parenthetical lengthens the citation, often by several lines. That lengthening causes greater disruption. Remember, main text citations trade readability for credibility. The longer the citation, the less readable the pros, the more unbalanced the trade.

Applying these factors, here are some scenarios that tempt readers to skip or gloss over parentheticals.

The main text suggests the parenthetical is unnecessary: If the main text sentence states an obvious or well-known proposition, a parenthetical seems unnecessary. Readers are always more tempted to skip portions that seem unnecessary. For example:

The statute of limitations for a bad faith tort claim is two years. Brodeur v. American Home Assur. Co., 169 P.3d 139, 151 (2007) (dismissing claim filed over two years and ten months after cause of action arose).

We all know what a statute of limitations is and the consequences of filing a tardy claim. The information in the parenthetical adds nothing. But that’s just the reader’s guess.

The reader’s triage comes before reading the parenthetical. Based on the main text sentence, the reader determines the parenthetical probably adds nothing and therefore is not worth reading. So the takeaway is to make sure the main text sentence preceding the citation sets up the need for a parenthetical. Great information does you no good if the reader never reads it. Secondarily, make sure the parenthetical’s information adds to your brief so when the reader does get to it, the information advances your argument.

The parenthetical is very long: Lengthy parentheticals rarely work. They are too much. They squeeze lists of facts or reasons into a run-on incomplete sentence. At the same time they drag out a citation, which disrupts the main text’s flow and often makes it difficult to find the next sentence. A common example is a parenthetical that tries to single-handedly apply a multi-factor test. For instance, a parenthetical applying People v. Humphrey’s twelve-factor assessment to determine if a Miranda waiver is valid.[3] Or a single parenthetical discussing how Effland v. People found five factors weighing against a finding of custody and fifteen in favor.[4] A parenthetical about one factor may be appropriate. But a discussion of the entire analysis or several factors is too much for one incomplete sentence bracketed by parentheses.

When to use parentheticals, what information to put in them, and how to convey that information requires judgment. But odds are you overuse them. To refine your judgment analyze People v. Brooks, which has over sixty case citations and only one with a substantive parenthetical explanation.[5] People v. Howard-Walker has over one-hundred case citations, only four with explanatory parentheticals.[6]

How to Phrase Parentheticals

An equally valid question is why we start parentheticals with a present participle (those “ing” words). Law school taught us this probably because the Bluebook rule on parentheticals says explanations not quoting the source “usually begin with a present participle.”[7] Why the Bluebook takes this position is unclear. Even if you live and die by the Bluebook, “usually” means not always.

Given the widespread use of “ing” words, would cutting them throw the reader or alter the meaning? See for yourself.

For all these reasons, we conclude that the issue was sufficiently preserved. See People v. Syrie, 101 P.3d 219, 223 n.7 (Colo.2004) (an issue is preserved where the trial court has “adequate opportunity to make factual findings and legal conclusions on any issue that is later raised on appeal”)

. . .

In all of them, the courts considered extrinsic circumstances only to determine whether the images were created to be viewed for sexual gratification. See Batchelor, 800 P.2d at 604 (that the defendant concealed the photos of his naked nine-year-old daughter, took the pictures at night, posed the child, and took the pictures secretly showed that he took the pictures for his own sexual gratification); T.B., ¶ 34 (that the defendant had texted the victims a picture of his erect penis when he solicited nude pictures from the victims showed that the pictures taken by the victims were intended for the defendant’s sexual gratification); Grady, 126 P.3d at 222 (the defendant produced photos of teenage models that he also posted on a website entitled “True Teen Babes”); Gagnon, 997 P.2d at 1284 (in deciding whether pictures taken by the defendant of a teenage girl in sexually suggestive poses and clothing were produced for sexual gratification, the court considered that “the pictures of the victim were found along with a large collection of other material the trial court described as adult pornography”).”

. . .

Images that are otherwise constitutionally protected images could become unprotected based merely on the subjective response of a particular viewer. See Batchelor, 800 P.2d at 602 (pictures depicting nude children for legitimate purposes are constitutionally protected).[8]

This excerpt shows “ing” words are often not needed. Commonly used present participles like “holding,” “finding,” and “concluding” are usually unnecessary because they are implied. In fact, it is difficult to imagine an example where such words make a difference. Take a look:

Smith v. Jones, 123 F.2d 345 (12th Cir. 2018) (finding statute of limitations barred claim).

Smith v. Jones, 123 F.2d 345 (12th Cir. 2018) (statute of limitations barred claim).

By contrast, openings like “comparing,” “reaching,” and “distinguishing” add meaning to a parenthetical.

You can decide when a present participle adds to the parenthetical. But omit them when they are unnecessary. Break the habit.


[1] Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 132-33 (Thomson/West 2008).

[2] Id. at 132.

[3] 132 P.3d 352, 356 (2006).

[4] 240 P.3d 868, 875 (2010).

[5] 2017 COA 80.

[6] 2017 COA 81M.

[7] The Bluebook: A Uniform System of Citation R. 1.5(a)(i), at 59 (Columbia Law Review Ass’n et al., eds., 19th ed. 2010).

[8] People v. Henley, 2017 COA 76, ¶¶16, 28-29.

 

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.

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.

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.