a e pump up the volume ao AMERICAN BAR ASSOCIATION Seca * 0 i ee a eI Litigation Commercial & Business The Art of Writing a Persuasive Fact Section yy see ay 39,28 Young lawyers spend much of thelr time researching statutes and case law to develop legal {arguments sboct legislative intent, publi poly, or tie pals language in a statute. We Graf carfuly cle arguments on developing logal cries. We cistinguish tre other Sie’ case, Tis worse mnportant~crtcal or any Gecent bref—bct as young lawyers we may be undervalung he importance of te fac: section. By and large, the judge wil be ‘ene with Ove lw. But the fact section is Unique lo each ease. A welbwriten fact Section vl provige the jucga with te framework he or she needs to reach the legal eondlusions tis made. This areele provides advice and examples for young lawyers on either sce of Write to Your Audience Pate yourse nthe readar’s shoss Is aways the umber one rule for persuasive writing Fora legal bre, your audtnce isthe judge, Weng tothe judge Involves two Considerations. The rts style Its important to recegn2e that judges are busy. The ‘ring must be succinct and organized, Usa headings, clagrams, or chars i they help ‘any tne story. AL Ue same ime, fecagnize when the facts are svalghtorward nd Bresent cham simply. The tone ofthe fet secton shouldbe informatinal, net Stoumentaive or condescending. Ava Jargon ana technical Lerma nen simple language ‘wil do, Do not say "price paint when you ean say "price," ard do at say URL when you Unless an acronym will simply the story, avald it.The bottom ine is ths: when eating nen is not If he setong is 9 particular Industry, consider Whar aspects ofthe Inustry Fistory would ai the story. If it involves an organization, consider providing @ description ‘ofthe organatien and ks key players. Wile you may Rave been working on che ce for montns, your ble! may be the frst ume the Judge has seen a cave Ike fe Irth fac Section unhelpful tothe judge-or worse, [is conusing to tre judge—he or she wil ignore On the other han, the fact section ls helpful, it may prove the amewerk for judge to decide the legal Issues n your cent’ favor. ‘craft the Best story You Can Bornet thoughtiecsiy adopt the lher side's version ofthe fact, or ther organization of the Story. Tell tin your own words. ‘choose which facts to tell. You must present the relovant facts, both good and bad. But you should do so in’ way that Mghights the acts that support your legal argument {including ny defenses you may have) and previows your ial theres. Mantaning sroumentatve, Irth fat section's net credible, your entire bref wil be discounted In choosing which facts to toll, consider writing the fact secton after you have drafted ‘what aceftional facts would be helpful for context and clarity. Make sure you include any Felovant fact that wil be uted by the other se. Omiting a relvant Toc wil dis your ered. 1p Rule 12 motions, the fat section ofthe briefs somawhat constrained by the allegations nthe comping, which are writen bythe plist ane wil favor the pits {ase (To that end, you are the plant, you should afeacy be thinking abaut te act fection when you are Grating the complaint) Ifyou ae the cefendart, i important to fmploy two tools. Fest, use the concaatof Judie nates to add facts. The eaute wil ook beyond the compiin "documents incorporates into the complint by reference, and Tmaters of which 2 court may take juical note” Tela, Inc. v. Maker issues & Fights, Led, 551 US. 308, 322 (2007). Coures may take Jusleal notice of documents ‘hose authenticy no party questions” "contract documents,” and “maters of public record." Unite statas ex ra Kraxberperv. Kan. City Power & Light Co, 786 F-36 1075, {083 (8th Ci. 2014) (ctng cases). Judicial notice slows You to aight provsons of the coneract otherwise ignored in he complaint (such 35 Walver Provision) anc provide‘The second tools to consider the facts that are not alleged. A defendant may say: “Mant dose nt allege the defendant kan the product wos dangerous," or Pine does not allege physical injury." Because the pain snot required to articulate every kona factin the complain, you must understand the case well enoUgh to Knew when to use this tool, Avol the tel pointing out the missing facts Nels the paint leery facts tat strengthen his or her case Decide how to tell the facts, Organization provides the judge wih a predictable framewors fom which fo learn, understana, ane remember the facts. Facts often star. hrovalgically, but not always, Ivean be effec to start othe middle snd then lash back. Or start with a kay fact omits By the other size to show that you are tang the Feal story ‘sa general rte of thumb, the plein story wil focus onthe fats that establish the ements of the claim. The defencant's story wil start earl In she timeline, prowaing ‘antes forthe plist allegatons ond suppor for afrmative defenses “The following ore examples of planti-side fot section ane defense-side fact section Ina feuona fase aevertsng case. The plait emphasies the "promise" that Was ‘made by the defendant, the plaints subjective belie, and damages. By contac, the fetense provides addtional context for the product and focuses on sclasure ane Compliance sth federl low, helther verson is rpumentatve, bit ts dear whieh side ‘Bxample 1 (Paintin: Defendant gFoods Company promise that each and every Dockage of ts Brand 7 food prosucts was cells, wholesome, ané mae fom ‘ualy,ocaly grown ingredients, Paint Jane Foca wae 2 loyal, lngstancing Sigroods customer. She bought sand Zand fe eo her fori. She seo encouraged her tienes and coworkers to buy t.Foaaie recent learned, however, that key Ingredient n Bran 2's not “local grown’ as promises in Srand 2s advertising tes ‘manufactured using industrial processes and then sold to BigFoods. Foodie would not fave purchased Brand Z for har family, oF encouraged ner iangs and coworkers to Duy fae hed knowns the truth. Foodie lata east §2 on every package of Brand Z Sha bought. Se, and others Ike her, has Sued under consumer pratechon ls $0 hat they may be reimbursed for Une losses. Example 2 (Defendant): Brand Z hes been an the shelves for 25 years, wes the fst of Its kind to offer both neath and convenience, and contains ingrelents that are made locally. Each package of Brand Z is made rom ingredients that ore frmes and harvested inthe Unite States. Moreover, avery Brand Z product conta a ul ist of Ingredients, os required by federal lw, Exoresly Included on that Ist the ingredient {hat Pain Jane Foodie dais snot “ocaly grown.” But that ingredient is made from locally grown grain, whith is then processes ater harvest and sol to Bigroods. SigFoods has camped witm every law and regulation regarding the abelng ane ‘overting of rand Z, and Fooce doesnot alege otherwise, Foote offers no factual Sppore for her claim that she overpaid for Srand Z ond cannot point to @ comparable roduc sole at 8 cnesper pre, Use the Delete Button [Another cca ip or persuasive wring (attributed to various writers Is that you cannot be ara to “kl al your drlings”—orn ther words, celete the work you have invested in perfacing=to improve the overal produc. This may be one ofthe hardest tlngs for ‘Young lowers to do tsoems nefcen, And depending onthe ease, you may consider {ung blng me forthe nw-deletad work, Nevertheless, this is nonnegotable. ANY ‘ora nord, sentences, or paragraphs that Go not help the narrative detract fom te Dersuasiveness ofthe bret. “To underscore this point, {leave you wih two of my favorite writers on wing. Bryan Garner advises in Te Elements of Lena! Syl: In revising, the greatest sls knowing let to reject. Search for every supertuous syllable. if a word or phrase cossn't ad the santance, blot rout. Every word, avery phrase, every sentence, cught > have some {efinable purpose.” stephen king, in On Writing: & Memo ofthe Craft, advises against fverusing wores ending in "ally" or "ly," sueh 35 “cal,” "inerestingly, “obvious — Seenuse thay are unnecessary! the reade> shoul be able tela facts mportart without spect drecton. Deleting these unnecessary words has the acded bene of ‘aking the narrative less argumentative Further Reading any people have writen about wring. Above, I quote fram Stephen King, On Writing: A Memoir ofthe Cra (2000); ane Bryan A, Garner, Te Elements of Lego! Style (1987). In {dition to those, I recommena Bryan A. Garner, Garner en Language and Writing (2609); ‘Stephanie Kane, “Narrative, the Essent Trl Strategy," 38 Ligaen, no, 4, Sommer 2008, st $2; Judge Stephen 1. Dwyer, Leonard 3. Felaman & Ryan P. WeBride, "How °o ‘inte Eat, and Review Persuasive Sree: Seven Gulceinas from One Judge and Two Loar” 31 Seattle U. L Rev. 417, 418 (2008); and Mark Herrmann, The Curmudgeon’ Gulde ro Pracecng Law (3006). Keywords: my Ambrose wih lachwa Buee PA. 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