9.2.1 FORMAL REQUIREMENTS
Supreme Court Rule 24.1(g) provides that a brief on the merits for a petitioner or an appellant8shall contain [a] concise statement of the case, setting out the facts material to the consideration of the questions presented, with appropriate references to the joint appendix, e.g., App.
12, or to the record, e.g., Record 12.An effective statement of the case will make it unnecessary for the court to resort to the record or the joint appendix, providing a “universe of facts” to which the court can refer. With rare exceptions, the statement should include in sufficient detail any fact even referenced in the argument.
In an appellate brief, the statement of the case should include necessary procedural facts and relevant background information in addition to the facts needed for the argument. The advocate should tell the story of the events that gave rise to the litigation and how it progressed through the court system on up to the current hearing. A motion brief, in contrast, usually occurs at a very early stage in the litigation. The writer must provide procedural information as to how the lawsuit began and how it has progressed, but this information is usually not lengthy and is thus not a significant part of the statement.
The statement should also include citations that will allow the reader to verify easily the information cited. In an appellate brief, most of the information will come from a joint appendix or a record, and that information should be cited according to Rule 24.1(a) or the appropriate rule from your jurisdiction. For many Supreme Court cases, the appendix to the petition for the writ of certiorari also contains important factual information. This appendix is usually cited along the same lines as the joint appendix, e.g., Pet. App. 12. Information that comes from the lower court opinions in the case (when these are not part of the record materials), as well as any statutes that may be included in the fact statement, should be cited according to appropriate citation rules.
As noted previously, if you are writing a motion brief, you usually will not have a lengthy record to draw on. You should take care, however, to cite precisely to the documents on which you have relied for your information, and to be sure the court has access to those documents as well. If the document has numbered paragraphs, as most complaints do, then cite to the specific paragraph referred to. For documents without numbered paragraphs, cite to the page number. Thus:
GOOD EXAMPLE
Mr. Kirkby was the Section Manager responsible for the supervision of the Plaintiff and 25 other administrative personnel. Compl. ¶ 5. According to the Executive Vice-President of the Company, this number of employees was typical for most supervisors at Marvin-Kobacker. Sczesny Aff. at 23.
Citations in the fact statement are vital because many judges will not trust facts without an appropriate citation. Judge Clyde H. Hamilton, of the United States Court of Appeals for the Fourth Circuit, describes the anger he feels when he encounters missing citations in fact statements:
[The importance of] appropriate citations to the appendix... cannot be overemphasized. Little else makes my blood boil quicker than reading an appellate brief that lacks appropriate citations to the appendix in the statement of facts and the argument components. Apparently, the parties submitting these briefs are under the serious misimpression that appellate judges have endless hours to spend combing the appendix in an effort to
match up scattered pieces of evidence with a party’s unreferenced factual assertions.9
Thus, it would not be unusual to have a citation at the end of every sentence in a fact statement. Because the use of “id.” is as appropriate for record citations as for any other kind of citation, these multiple citations need not be intrusive.
If this is the first time you are working with a lengthy record, you may be tempted to “treasure hunt” for facts that help your client’s case or hurt your opponent’s. Hunting for treasure is fine, but be sure you have not found fool’s gold: Only formal findings of fact can be cited as such. If you think it would be helpful to cite testimony or other evidence that was not part of the court’s factual findings, be sure that you characterize it appropriately.