Follow the Statement of Issues With a Strong Statement of the Case (Appellate Brief Series Part 5)

This article appears substantially as published in the January 22, 2015, issue of the Massachusetts Lawyers Weekly. It has been modified where necessary to reflect changes in the Massachusetts Rules of Appellate Procedure. Attorney Manwaring writes the newspaper’s Appellate Issues column, which is devoted to matters arising from the appellate process.

Having drafted an effective statement of issues for your appellate brief (the subject of my Aug. 18, 2014, column), your next task is to present the facts of the case.

How you present the facts in your appellate brief can be at least as important as your legal analysis. A skillfully drafted factual section will both establish your credibility in the eyes of the court and tell a compelling story, leading the judges to view the case from the perspective most favorable to your client and making them more receptive to the legal positions you take in the argument section.

The Massachusetts Rules of Appellate Procedure require that the facts be presented in two separate sections: (1) a Statement of the Case which describes the nature of the case, provides the procedural history relevant to the issues on appeal, and identifies the disposition of those issues by the trial court; and (2) a Statement of Facts section which describes the relevant facts but need not include facts otherwise included in the Statement of the Case.

Nature of the case

The nature of the case subsection should offer a very short, general description of the dispute between the parties and your view of the issues on appeal.

Procedural history

The procedural history must include appropriate citations to the record (i.e., to the appendix). It should include all procedural events that are relevant to the appellate issues, but should omit events that are not relevant. Accordingly, if the critical issues on appeal deal with evidentiary rulings at trial, there is no need to refer to most pre-trial events.

While it usually makes sense to set forth the proceedings below in chronological order, it is not required. In certain cases, when a procedural event or ruling gives rise to the central issue on appeal, it may make more sense to start the proceedings below section with that critical event.

Relevant facts

In the relevant facts section, you present in a neutral, non-argumentative tone all the facts relevant to the issues on appeal. If you prepared a summary of the record while reviewing it in preparation for drafting the brief, that summary can provide an initial draft of the relevant facts section.

Your relevant facts section has two primary goals: (1) to develop and maintain your credibility; and (2) to present the facts in such a way that the judges finish reading them with the sense, if you represent the appellant, that the trial court erred in a way that needs to be corrected or, if you represent the appellee, that no reversible error occurred below.

Maintaining credibility is essential. If the judges conclude that they cannot trust your presentation of the facts, they are much less likely to trust the law you present and the arguments you make in the argument section of your brief. To build credibility in your relevant facts section:

• Maintain a neutral tone and avoid presenting the facts in an overtly argumentative manner;
• Include only facts that are in the record (i.e., that were presented to the trial court);
• Be honest and complete. Include all relevant facts, whether they help your case or damage it. In addition to ethical concerns, omitting negative facts is counterproductive as it offers the opposing party an opportunity to attack your honesty;
• Cite meticulously to the record. Every factual statement must be followed by a citation to the appendix or transcript. Rule 16(a)(7). If you convince the judges and their clerks that your citations are reliable, they will be more likely to use your brief as a reference document.

Your other goal, of course, is to structure this presentation so as to persuade the Appeals Court to rule in your client’s favor. Use this section to tell the judges a story, explaining the case from your client’s perspective and personalizing your client when possible. Usually, a chronological structure will work best for this narrative.

As the name of the subsection implies, you must include all relevant facts. Think ahead to your argument section. Any fact on which your argument will rely must be included in your relevant facts section. Strictly speaking, if a fact is not relevant to any of the appellate issues, and is not necessary to an understanding of the relevant facts, you can omit it. However, some facts that are not technically relevant will still contribute to the “story” you are trying to tell.

Like the statement of issues, while maintaining a neutral tone, you should craft your relevant facts section to stress facts favorable to your case and diminish facts that harm it. Ways in which that can be accomplished include:

• Placing positive facts near the beginning or end of paragraphs and sentences within paragraphs, while burying negative facts in the middle of paragraphs and sentences;
• Linking any negative facts to the circumstances that explain them;
• Placing paragraphs containing negative facts between paragraphs containing positive facts;
• Using active voice for positive facts (“Jones applied the brakes”) and passive voice for negative facts (“the brakes were applied by Jones”);
• Placing negative facts in subordinate clauses of sentences.

I offer the following additional suggestions:

• Use specific dates only when they are relevant (e.g., to a statute of limitations issue). Unnecessary dates distract the reader;
• Use subheadings within your relevant facts section. They help the reader navigate complex facts and also will appear in your table of contents, allowing it to serve as a summary of the facts and argument;
• Do not refer to the parties as appellant and appellee. Instead, use names that help the reader remember who is who (e.g., “Brown” and “the Company”);
• Use short quotations from the record, but avoid long quotes that will lose the reader’s attention;
• Revisit your relevant facts section after you finish drafting the argument section of your brief. Often, as the argument section becomes more developed, it may come to rely on facts that you did not initially include in the relevant facts.

Devote the time necessary to drafting an effective statement of relevant facts. By presenting the judges with a compelling story, and offering them the facts in the form most favorable to your client, you increase the likelihood that they will be receptive to your legal arguments.

My next column will focus on how to make those arguments clear and persuasive. 

Updated: June 1, 2019