Your statement of facts matters

When lawyers get started writing a brief, they often seem to get themselves warmed up by explaining to the court what the brief is about. Or so they think. These early sections, which might be called “Procedural Background,” “Background of the Motion,” or something related, are a good place to look for this common briefing error.

It starts with a blitz of irrelevant dates, which may be further muddied by a seeming lack of certainty about those same dates. Here’s an example: “Plaintiff filed her Complaint on or about June 5, 2011.” Why would you ever say this to the court? To prove that a complaint was in fact filed, that your case had its birth in the conventional fashion, and was not immaculately conceived upon the docket? Because the date of the complaint actually matters? Is someone asserting a limitations defense? If the date matters, does the day really matter? Isn’t 2011, or June 2011 close enough? And if—as will be the case perhaps once in your career—the day of the complaint is important, then you’ve lost before you’ve begun if you tell the court you’re not sure what day it actually was by using “on or about.” Most likely absolutely nothing turns on anything about this sentence, and the whole thing can be deleted.

One of the most common edits that I make to fact sections in personal-injury briefs is to delete sentences giving medical facts that are unimportant to the motion. A fact is important if one or more of the following apply: (1) it is material to the court’s decision of your motion; (2) though not strictly relevant to the current motion, it is important to understand the case as a whole or to place the motion into context; (3) it advances an important case theme that is reasonably relevant to the motion; (4) it will probably be raised by your opponent and you will seem to be hiding things by omitting it.

Fact sections and procedural backgrounds can be very persuasive, if crafted carefully so that important details are included, unimportant ones ruthlessly cut out, and the facts organized carefully into a powerful story. Don’t waste the opportunity.

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