Drafting Persuasive Facts

Everything we write in appellate briefs provides an opportunity to persuade, from the table of contents through the argument.  But persuading through facts can be challenging, given the “frequent admonition that the statement of facts is not a vehicle for argument.”[i]  Yet “even a scrupulously honest, straightforward summary of facts of a case can be so written as to be persuasive in favor of one side or the other; that is good briefwriting and is of course acceptable.”[ii] So how is it done?

There are several strategies to drafting a persuasive statement of the case. 

1. Establish your credibility. First, comply with the governing rule by including all needed components of the facts section.  Generally speaking, this includes all legally relevant facts (even those that favor your opponent), the procedural history, and citations to the record for each factual assertion.  Second, state the facts accurately.  Nothing sinks credibility faster than an inaccurate assertion.  Third, avoid hyperbole.  “[S]tating that the trial court’s findings are ‘astonishing,’ and ‘extraordinary,’ or describing an opponent’s position as ‘ludicrous’ is not acceptable.”[iii]
2. Use cognitive science. According to the primacy effect, people are often influenced by and tend to retain the first information they receive.[iv] And the recency effect suggests that, at other times, “people will remember, and be influenced by, the last information to which they are exposed.”[v]  “[B]ut there is clear indication that people tend not to remember, and are not persuaded by, material that comes in the middle of a presentation.”[vi]  So start and end your facts with those that favor your position and use the middle to house the less favorable ones.
3. Use elements of story. “Stories are the predominant way in which humanity has always communicated, and because of this, our brains are ‘evolutionarily hardwired’ to think in terms of stories and to comprehend information given to us in terms of stories.”[vii]  All cases involve a story of some kind.  Figure out where your client fits in (protagonist, antagonist, comic relief?) and tell their story, using motivation as plot and the main point of contention as the climax.  Simply presenting each witness’s testimony in the order in which it was given at trial is not captivating.
4. Make strategic use of characterizations. When you want the reader to reach an inescapable conclusion about a scene, use specific details to paint the picture without giving a characterization.  For example, a description of “blood-soaked grass surrounding the remains of a car crushed like a beer can, with sunlight glinting off glass shards scattered across the asphalt, and the smell of burning rubber still hanging in the air,” puts your reader in the middle of a scene involving a horrific car accident.  But, if you describe the scene as simply “a horrific car accident,” your reader must take your word for it.  On the flip side, if you do not want your reader to think too hard about the details, use characterizations to your advantage to present the facts objectively without evoking the same level of emotion.
5. Frame your facts. Just as advocates can frame rules to favor one outcome over the other, advocates can also frame facts.  For example, in Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986), the Court was asked to decide whether a school district had authority to discipline a student for giving a lewd speech during a school assembly without violating the First Amendment.  One argument the school made was that the audience at the assembly included a captive audience of young children, so it needed authority to ensure messages were age-appropriate.  Thus, in its brief, the school district noted, “Attendance at the assembly was mandatory for all pupils, unless they chose to report to a study hall.”[viii]  The disciplined student, however, noted in his brief that the speech occurred “at a voluntary school assembly conducted by the student government.”[ix]  Both were accurate statements but painted very different scenarios.

In summary, as with all components of appellate briefs, a statement of facts is yet another opportunity to persuade the reader. By taking the time to consider the manner of presentation, advocates can significantly influence the reader’s perception and strengthen the arguments that follow.

[i] Markowitz & Co. v. Toledo Metro. Hous. Auth., 608 F.2d 699, 704 (6th Cir. 1979).

[ii] Id.

[iii] Id.

[iv] Kathryn M. Stanchi, The Power of Priming in Legal Advocacy: Using the Science of First Impressions to Persuade the Reader, 89 Or. L. Rev. 305, 346 (2010).

[v] Id.

[vi] Id. at 347.

[vii] Jeffrey D. Jackson, For Effective Persuasion, Don’t Neglect the Narrative, 84 J. Kan. B. Assn. 12 (April 2015).

[viii] Brief of Petitioners, Bethel School District No. 403 v. Fraser, 1985 WL 667975, at *2 (emphasis added).

[ix] Brief of Respondents, Bethel School District No. 403 v. Fraser, 1986 WL 720451, at *1 (emphasis added).