your position is correct. Be judicious. Omit extraneous details about the important facts because
they, too, are unlikely to advance the ball and instead can distract the reader. A story is best told
by using the players’ names or positions (such as “Smith”), rather than “plaintiff” and “defendant”
(or by legal jargon such as “assignee”/“assignor,” “grantor/grantee”). Identify individuals by last
name and entities by descriptor, such as the “Bank,” the “Law Firm,” “Acme” and the like. Think
about a short form that communicates covertly — for example, in a wrongful death action, you
might identify the deceased’s wife as the “Widow.”
The Statement of Facts must set the stage for the legal arguments to follow. You should already
have outlined the legal arguments, based on the law, when crafting the factual statement. What
facts are particularly important to the legal claims at issue and the legal arguments to be made?
They should be emphasized in your factual statement. Your argument down the road will
highlight those facts in the context of the principles of law that apply.
The bottom line is that the Statement of Facts — with nothing more — should make the court
want to rule in your favor. In most instances, the facts will drive the result, not the law, and you
want the story to move the judge to apply the law in order to reach the result you want. After
perhaps the Preliminary Statement, the Statement of Facts is the most important part of your
brief.
—By Scott M. Himes, ​
Ballard Spahr LLP
Scott Himes​
is a partner in Ballard Spahr's New York office. He focuses his practice on
complex commercial litigation and government enforcement matters.
The opinions expressed are those of the author(s) and do not necessarily reflect the views
of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This
article is for general information purposes and is not intended to be and should not be taken
as legal advice.
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