Wood’s Words: Narrative Imagination and the Statement of Facts
by Scott Wood
(County Bar Update, April 2007, Vol. 27, No. 4)


Wood’s Words: Narrative Imagination and the Statement of Facts


By Scott Wood, clinical professor, Loyola Law School, Los Angeles. Wood offers writing workshops for litigators and one-on-one consultations. He can be reached at Scott.Wood@LLS.edu.


Clients come to lawyers because they have stories to tell and they can’t tell them themselves. When the story is for a court, the lawyer must know how to craft a strategic Statement of Facts. Few lawyers have learned how; the lawyers who have start with a leg up. They know that the shortest distance between the court and the client’s truth is a good story.


The impact of a good story is immediate because the Statement of Facts provides the court with the first—and probably most long-lasting—impression of the client’s side of the case. Moreover, the facts supply the predicate for the legal rules urged by the legal argument. When the facts are right, the argument stands up. And, of course, the Statement of Facts is crucial for success because the other side is telling a different story. The best-crafted story tips the balance.


When writing the Statement of Facts, most lawyers simply lay out a chronology. “First X happened, then Y, then Z.” But a story is much more potent; it leads the reader to empathize with the client, to see events through the client’s eyes, to draw inferences in the client’s favor. Since the Statement of Facts cannot employ overt arguments or conclusions of law, the organization of the facts must be carefully crafted. Here are five tips for strategic crafting:


First, find your theme. Discover in the facts the emotional and equitable heart of the matter, the theme that pumps life blood into the plot. Consider the themes of two of Shakespeare’s plays:


An ambitious general and his even more ambitious wife plot together to kill the king. After taking the crown, their ill-fated scheme turns to dust when she goes mad, and he dies battling the king’s men. Theme: In Macbeth, reckless ambition is fated for disaster.


A prideful old king divides his kingdom among his three daughters based on how much each says she loves him. Foolishly rewarding the two flatterers and exiling the truth-teller, he then suffers his own cruel banishment and learns too late that love can neither be ordered nor bought. Theme: In King Lear, prides goes before the fall.


Tell the story from your client’s point of view. Surprisingly, point of view is one of the most powerful persuasive devices. For example, prosecutors invariably describe the crime from the victim’s point of view. They move the court emotionally by putting a human face on the consequences of the crime. Similarly, skilled advocates for corporate defendants or insurance companies tell the story with human actors, not an impersonal entity.


Begin with punch. Open with the most compelling facts or incident. Since the rules of court do not dictate any particular starting point but rather only confine the statement of facts to admissible evidence and facts subject to judicial notice, you have a choice. Since the opening is most memorable—you only have one chance to make a good first impression—choose the starting point strategically. The opening sentence or two should also signal your theme.


Describe the favorable facts and events in vivid detail. Give the best facts “airtime” by putting them first and last while burying bad facts in the middle—in the middle of sentences, in the middle of the statement of facts. Remember, too, the power of “nonfacts,” the things that did not happen. Plaintiff’s counsel in a bad faith insurance case will include a litany of the calls that the claims adjuster never returned, the letters that were never answered, the long overdue payments that were never made.


U.S. Court of Appeals Judge Ruggero Aldisert of the Third Circuit emphasizes, “The job requires consummate skill, because the writer must constantly seek balance: balance between being scrupulously accurate and putting the most favorable emphasis on your version of what happened.”1


End with impact. Choose a closing incident or scene that reiterates your theme, a closing image that will stay with the reader. Like the final chords of a symphony, the ending scene should reverberate and resonate with the judge.


As Judge Aldisert teaches, “If you handle this job [of writing the Statement of Facts] well, you give your entire case the high gloss that marks a professional.”2 And you stick your client’s story in the judge’s mind.


1 Ruggero J. Aldisert, Winning on Appeal: Better Briefs and Oral Argument, 152 (rev. 1st ed. 1999).


Id. at 174.

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