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How to write a good appellant brief(四)

2016-03-07 11:13 纠错

No Argumentative Statements

We now come to one of the few absolute — but, unfortunately, often violated — rules of brief writing: The Statement of Facts should never be argumentative in tone. The Statement of Facts is for telling the court what the case is about. The argument portion of the brief is for contention about the significance of those facts. Nothing impairs a brief writer‘s credibility more than an emotional, sarcastic, plaintive, or visibly one-sided Statement of Facts.

In order words, in the Statement of Facts, understated advocacy works best. A judge will be more prepared to believe that your client should win if your statement seems objective than if it editorializes. A judge will be more inclined to accept the fairness of your statement if it acknowledges the other side‘s strongest points and introduces — but does not argue — the facts or concepts you will later use to counter the other side. Remember, judges are lawyers, too, who are accustomed to careful analysis of facts and authorities. If your statement presents your case in a fair but favorable light, you do not need to carry every argument all the way to its logical conclusion at that point. You certainly need not drown the reader in rhetoric.

A closely related blunder is committed by many appellants challenging adverse jury verdicts. They fail to recognize that the evidence will be reviewed on appeal in the light most favorable to the verdict — that is, most favorable to the other side. It may be appropriate to describe both parties‘ evidence, but you should never present only the version favorable to you when that version has been rejected by the factfinder.

Of course, it is essential in the Statement of Facts to describe the record accurately. An answering brief that can show that you have distorted the record, or quoted material out of context, or otherwise arguably misled the court, can be devastating. The resulting loss of credibility will — you may be sure of this — undermine the reception that every other part of your brief receives.

This does not mean, however, that advocacy plays no role in drafting the Statement of Facts. Quite the opposite. Although the tone must at all times remain neutral and dispassionate, artful selection, emphasis, and organization of facts can go far to shape a reader‘s perception of the case.

The trick for the appellant is to make the reader feel that the statement presents a fair description of what happened — an account of the material facts leavened with a recognition of the presumption of correctness that fortifies the factfinder‘s resolution of factual disputes — yet, at the same time, have the reader come away with the feeling that the outcome of the trial court proceedings was none too sensible or fair.

Conversely, if you are the appellee, you will try to suggest that the appellant has distorted the facts, which, when correctly described, make the trial court outcome seem fair, reasonable, and almost inevitable.

One final point regarding the content of the fact statement: Every lawyer should know, though not all honor, the rule that you are limited to stating the facts contained in the case record (even though you may believe that the record is not what “really” happened) What is less often appreciated is that the statement need not be confined to the historical facts — who did what, and when. In addition, it can introduce relevant statutes, cases, and arguments to the court, as long as it presents them in a descriptive rather than an argumentative manner. It can also set forth — though carefully — what might be called “legislative facts,” even though those “facts” are not part of the trial record, if they are background facts of the kind that a responsible judge would consider in determining the appropriate legal rule. Such a submission — a “Brandeis brief” — has an honorable place in American law; it is proper as long as the line between legislative and adjudicative facts is scrupulously honored.

How long should the statement be? Recall what Lincoln said about how long a horse‘s legs should be: long enough to reach the ground. A statement should be long enough to tell the judges or Justices what they need to know, and no longer. Sometimes that will mean four pages of a 50-page brief, and sometimes 20 or 25.

In a case involving a plain legal issue, a short factual account may suffice, followed by a more elaborate legal analysis. In a fact-intensive case, on the other hand — a challenge to an administrative agency ratemaking decision, for example — the statement may need to be much more elaborate. It may have to set forth in some detail the relevant statutory scheme and the structure of the particular regulated industry, followed by an account of the course of agency proceedings. In such a situation, it may then be possible, building on the factual foundation that the statement has laid, to have a comparatively short legal discussion.

In general, a reader is unlikely to grow too impatient with a statement that usefully sets forth relevant facts, even at some length. However, if the statement seems to be loaded with irrelevant detail — either because it actually is full of irrelevancies or because it is so poorly organized that the reader cannot grasp the relevance of what is being said — then it is likely to receive an unsympathetic reading.

One final point on this topic: The Statement of Facts is the place to introduce the parties and to explain any shorthand you will use to refer to them, plus the acronyms that you intend to use in the brief. Such shorthand references can help keep the writing lively, which is an important goal. Rule 28(d) of FRAP specifically advises counsel to “keep to a minimum references to parties by such designations as ‘appellant’ and ‘appellee’。” That advice is but one example of a larger point.

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