LEGAL TECHNIQUE

Writing the Facts

 
“Facts do not 'speak for themselves,' they
are read in the light of theory.” Stephen J. Gould
 
 
1.         The facts tell the story of a legal problem
 
Facts are the unique set of circumstances that lie at the base of a
legal problem. They constitute an essential ingredient in legal reasoning.
 
In any legal document that presents a conclusion based on the
application of the law to the facts, a summary or statement of facts is
important. The legal document may take the form of an inter-office paper,
an opinion sent to a client, or a pleading, memorandum or brief submitted
to the court. Every decision must contain a statement of the facts on which
the conclusions have been made.  
 
Whatever kind of legal document a legal writer is to compose, it
has to take off from the facts.
 
2.         Meaning of facts   
 
            In the context of a legal problem, a fact refers to the event, thing or
idea taking place or existing in the past, present, or future. The facts may
consist of:
 
(a)       the objective reality, regardless of each party’s version;
(b)       the facts alleged or presented as proof by a party to support
the position in a legal dispute; or
(c)       the facts found to be such, i.e., the “findings of facts,”
reached by the decision-maker.  
 
3.         Kinds of facts
 
The facts of a legal problem may be generally classified into:
 
(a)        Material facts.  These are the facts that prove or disprove the
elements of a legal rule (e.g. the elements of a cause of action, felony,

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defense, or damages).
 
EXAMPLE:  The fact of death of a victim in a homicide
case.
 
(b)       Relevant facts.  These are the facts that tend to make the
existence of a material or consequential fact more probable or less probable
than it would be without such fact.
 
EXAMPLE:  An airline manifest listing the name of the
accused as a passenger in a flight during a particular
date and time, to support the defense of alibi i.e, the
physical impossibility that the accused was in the place
on the date and at the time that the victim was killed.  
 
(c)        Collateral facts.  These are facts that are incidental to or give
background detail in the overall story, but are not necessary to resolving
the problem.
 
EXAMPLE: In a homicide case, the fact that the victim
graduated with honors during college.
 
            Facts may fall into three groups: those that help, those that hurt, and
those that seem inconsequential. The last group may contain elements of
importance after the law has been examined and should not be
immediately discarded. [1]
 
4.         Get a grasp of the facts 
 
A legal analyst must know and study the facts of the problem. The
facts may be broken down into elements that answer the basic questions:
 
(a)   What:  What is the event, act or thing involved?
(b)   Who: Who are the persons involved?
(c)    When: When did the event, act or thing occur?
(d)  Where: Where did the event, act or thing occur?
 
5.         Study the facts with an eye on the law 
 
            The facts of the legal problem interrelate with the applicable legal
rules or propositions that the legal analyst will invoke in a legal dispute.

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Otherwise put, it is the legal rules or propositions that will determine the
material, relevant or collateral nature of the facts. 
 
Thus, the legal analyst reads and studies the facts against a
background of legal knowledge. As the facts and law are interrelated,
compared, and processed, the legal arguments favorable to the legal
analyst’s position begin to take shape insofar as these arguments are
supported or not supported by the facts. In this sense, one writer has said
that it is the facts that often make the argument. [2] The arguments are
only as good as the facts that support them.
 
6.         Narrating the facts
 
The facts are presented by the legal analyst in a legal document in
the narrative form, which means that the events are recounted according
to the structure or sequence adopted by the analyst.
 
(a)        Chronological. The facts are presented according to the
order of date and time that they occurred. This is the most commonly used
form.

(b)       Events. In this form, the facts are recounted not

chronologically but according to the importance of the major events.

(c)        Characters. Here, the facts are narrated based on the

participation of the persons (parties or witnesses).

(d)       Elements. The legal writer may also choose to narrate the
facts on the basis of the crucial elements of the rule involved in the legal
dispute.
           
Whatever is the form or manner to be adopted, the legal analyst
must ensure that the flow or sequence of the facts is presented in an easily
comprehensible way to the reading audience (eg. court or opposing
counsel).  

7.         Make the facts interesting

 
            The merits of the lawyer’s case is embedded in the facts, so it is vital
for the lawyer to pluck out those facts and weave them into a narrative
that catches the reader’s interest from the first sentence to the last. A sure

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way to keep the reader hooked is to tell a good story. [3]
 
8.         Be accurate
 
            Every fact stated in a brief or memorandum must be supported by
the record. The narration need not be in the very words appearing in the
record, but the phraseology must be supported by the record. [4] It is
unethical for a lawyer to state out-of-the-record facts and anyone who does
so may be disciplined.
 
9.         Be truthful
 
This is related to the preceding suggestion. The legal analyst is
cautioned against twisting the facts. Do not give a different meaning to the
statements of the persons or witnesses that could not be supported by the
record.
 
10.       Be brief
 
In writing an opinion, memorandum or brief, the legal analyst
should stick to the material and relevant facts of the problem or dispute.
Include only those facts that are related to the issues and the arguments.[5]
 
This is not to say that all collateral facts must be excised, to the
point of reducing the facts to bare bones, only that such other details may
be added which the legal writer deems useful in the overall aim of
persuasion.  
           
11.       Quote sparingly and only if necessary
 
Only the lazy writer splatters the legal document with blobs of
quotes without exerting effort to synthesize the factual record.
 
            If the legal analyst must, quote only the strictly relevant important
portions, and if possible, weave the quoted material within the factual
summary.
 
12.       Don’t argue
 
            The reasoning or justification of a party’s position in the legal
problem is done at the discussion or argument part of the memorandum or

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brief, not in the statement of facts.
 
But the legal analyst, even by allowing the facts to “speak for
themselves,” may craft the narrative in a way that would put the client’s
case in the most favorable light or to lessen their negative impact on the
client. 
 
The skill required is like that of a painter who adds the right tone
and color to the artwork to make it attractive. Still, the analogy is limited
because the legal writer must be careful not “to apply color which is not in
the palette of the case.” [6]
 
13.       Use the facts to persuade
 
Through a skillful statement of the facts, capture the reader’s
attention, kindle and keep the reader’s interest, and induce conviction.
This is the art of persuasion. [7]
 
14.       Be creative
 
“What I like in a good author is not what he says, but what he
whispers.” [8]
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[1]               Theodore Vorhees, The Art of Written Advocacy; Juan F. Rivera, The
Great Power at the Bar and Bench, 669  (1972)

[2]               Steven D. Stark, Writing to Win, 71 (1999)

[3]               Philip N. Meyer, Vignettes from a Narrative Primer, The Journal of
the Legal Writing Institute, vol. 12 (2006)

[4]               Cf Theodore Vorhees, The Art of Written Advocacy; Juan F. Rivera, op
cit., 673

[5]               Cf Steven D. Stark, op cit., 108, 115

[6]               Hon. Wiley B. Rutledge, The Appellate Brief; Juan F. Rivera, op cit.,
683

[7]               John Alan Appleman, Tactics in Appellate Briefs, Juan F. Rivera, op
cit., 802

[8]               Logan Pearl Smith, All Trivia, Afterthoughts (1931)