Last week, Justice Cronk set out the starting points for writing a noteworthy appellate factum: know your audience, ‘own’ the factum, and present a good overview. This week, she continues with some of the nuts and bolts for putting your factum together (with a little help from Lewis Carroll).
Facts
The next section of your factum requires a description of the relevant facts. This is a huge opportunity for effective advocacy. If you have already identified the key issues — as you should have — you must then marshal the facts to support your characterization of the issues. All the other facts are irrelevant.
Remember to make the narrative of the facts flow — it should be a story that captures the reader’s attention and interest. Use of the active tense, rather than a passive voice, assists greatly in this task.
Some counsel think the facts must be recited in chronological order. This is often useful, but not mandatory. The facts can also be clustered around each issue. This, too, can be effective.
The fact section is not a summary of the evidence. Don’t overdo it — use only those facts that are necessary in establishing the context of the case and the issues for determination. For example, it can be helpful to tell your reader how many witnesses were called at trial by each side. If there were experts and opinion evidence is in issue on appeal, identify the experts. What are their areas of specialty? Did they agree? If not, what was the conflict in their opinions?
In the end, the important thing to remember in drafting the facts is to “revise, revise, and revise again.” Eliminate all non-essential details. For each question, ask yourself: “Why is this information pertinent? Why do the judges need to know this?” If you can’t answer those questions readily, get rid of it.
Recall also that the reader will never know your case as well as you do. It is important, therefore, to leave the reader in no doubt about why the recited facts matter. Explain how they are relevant. I return to Alice and Lewis Carroll’s insightful words, speaking through the Mock Turtle, “What is the use of repeating all that stuff, if you don’t explain it as you go on? It’s by far the most confusing thing I ever heard!”
Also, don’t dodge the troublesome facts. In a fact-based appeal, they must be dealt with head-on if they are germane to the issues to be decided. Acknowledge them, and explain why they don’t matter, why they must be viewed in context, or why you say that, ultimately, they are not material.
A word about factual findings by the trial judge: if the trial judge made key factual findings, identify them. We live in a world of appellate deference to a trial judge’s factual findings — there is little scope for appellate intervention with them. If, as the appellant, you are attacking factual findings, say so and explain why the findings are flawed or unsupported by the record. If, as the respondent, you are confronted with a challenge to factual findings, remember that deference is your first line of defence. The appellant has a difficult, although not impossible, task in seeking to upset factual findings. Use this to your advantage — if the findings are supported by the evidence, say so, and describe the relevant evidence.
Finally, and critically, be scrupulously faithful to the record. Don’t distort the facts or shy away from unhelpful factual findings. Judges in our court read much of the record in preparation for an appeal — not just those passages cited by counsel. If you are unfair to the record, you will lose the trust of the panel.
Argument
The argument section of your factum is obviously critical. Organize it on an issue-by-issue basis. With each issue, begin with your strongest argument. State it clearly and early. Then develop it by reference to the evidence and supporting authorities. Always tell the reader where you are headed — and why. Ask yourself with respect to each issue: “What is my point? What am I trying to say?” If you can answer these questions, you will know what to write, and in what order.
There are some important things to avoid. Some of them sound trivial — they are not. What is unhelpful or unwise in a factum? Here’s a short list:
1. Avoid overcrowding the page with content. The mind can only absorb so much on first reading. If the page looks “dense” because of the amount of information on it, by definition it will be unclear and the reader won’t easily understand what you are trying to say. Pay attention to white space. The object is to create a visual impression with each page of the factum that aids in comprehension;
2. A factum should not read like Carroll’s famous Jabberwocky poem. Nor is it a Dostoyevsky novel — the reader should not have to be flipping back to earlier pages to figure out what you are saying. Busy judges who have 10 or more factums to read before the day is done may not be inclined to “decode” your narrative. Tell it simply, early, and clearly — avoid unnecessary verbiage or technical expressions. And, as the Eaglet said in Alice, “Speak English! I don’t know the meaning of half those long words, and I don’t believe you do either!”
3. Avoid making merely conclusory statements. Simply stating and restating a proposition doesn’t make it so. State your point and then explain why it is legitimate or relevant;
4. If your appeal involves the correcting of errors made by the trial judge, state the suggested error succinctly and then point out where it occurred in the trial judge’s reasons. Don’t leave the judges rudderless in their search for how and where the error is evident. Tell the judges where to find the error and point out exactly what evidence or authorities establish that it is an error. This is particularly important in fact-driven appeals. If you say that the trial judge misapprehended the evidence or made a palpable and overriding factual error, you must be able to prove it. What evidence was contrary to the impugned finding? What evidence was ignored or discounted? Merely alleging an error is unpersuasive and, ultimately, will get you nowhere. Show the court why it is an error; and
5. Avoid the use of endnotes, use footnotes instead. Endnotes in a factum are irritating and inconvenient. They require the reader to flip pages to identify the support for your statement. Once again, your objective is to facilitate comprehension of your argument, and to persuade as you go.
There are also many devices available to enhance the persuasiveness of your argument. Consider, for example: (1) using charts and diagrams or the reproduction of key photos from the record; (2) quoting directly from the trial judge’s reasons or a leading authority where the reasoning advances your position; (3) paying particular attention to the quotes you select from authorities and the reasons of the trial judge. Judges do read them. Make sure that they are accurate and that they matter. If you are using a long quote, isolate in italics the part of the cited quote that you wish to emphasize; and (4) in a statutory interpretation case, setting out the English and French language versions of the text at issue, in a side-by-side comparative chart. A similar approach can be used where the language of a predecessor legislative provision must be contrasted to the current version. These techniques can add force to your argument, focus the reader’s attention and ‘tell a story.’ Used in the right situation, they are powerful aids to argument.
Purpose of the exercise
In the end, the purpose of the exercise is straightforward. Your job as appellate counsel is to communicate and persuade. Use every component of the factum to this end. Make the factum your own. Read and reread it, revise and revise it again. It is your “first shot.” Properly drafted, it may also be the controlling one.
I offer this final suggestion. Once you are content with your factum and think it is ready to go, ask a colleague unfamiliar with the case to read it with these questions in mind: Is it clear? Is it persuasive? Is it precise? If, after reading it, your colleague is with you on these three issues, the odds are good that you will also reach at least one and, with luck and good advocacy, two of the three reviewing judges. And that, of course, is all that you need.
I conclude with a return to Alice — this time to the caution on the doorknob that Alice confronts en route to Wonderland. Adapted to these remarks, the doorknob advised: “Read these directions and directly you will be directed in the right direction!”
Justice Eleanore A. Cronk is a judge at the Court of Appeal for Ontario.
