Tell the Story: Writing the Statement of Facts in an Appellate Brief

Bard of the Bar

Mar 21

Rudyard Kipling, An Interview with Mark Twain, 180 (1899).

“Get your facts first; then you can distort them as you please.”

First and foremost, a brief must tell a compelling story. It should cry out for relief for your client. Judges are people; they want to feel like they are doing the right thing. Help them rule in your favor: tell your client’s story. Use classic archetypes. Cast the characters of your lawsuit into traditional roles in a story: victim, hero, orphan, widow, prodigal son, etc. Convince the Court that the world will be a better and fairer place if your client wins.

You could compare the judges’ process to watching a basketball game when you have no allegiance to either team. During the game, something will happen, or some player’s style will engage you, and you will begin rooting for that team. They start out neutral, simply reading the facts. You want them to end up subconsciously rooting for your team – or at least against the other one.

One of my clients was killed when a train struck her car at a railroad crossing. She was on her way to church. Was that fact legally significant? No. Did I mention where she was headed when crushed by the train? Yes.

In almost all cases, I tell the story as if the reader is witnessing it, chronologically, with few digressions. The goal is to capture the reader’s attention, keep them turning the page. I also recommend subheadings that tell a story themselves, almost as if they are headlines for a series of newspaper articles. In many appeals, a brief’s narrative can carry more weight than the legal argument.

I actually prefer writing the statement of facts in a brief more than the legal argument. I feel it gives me the most freedom to persuade, since the law restricts what you can say.