9.2.3 MAKING THE FACTSTATEMENT PERSUASIVE

Most courts frown on the inclusion of legal arguments in the fact statement. They frown even more on lying, even if by omission, or on stretching the truth in the way that you characterize the facts.

Supreme Court Justice Ruth Bader Ginsburg advises that “[a]bove all, a good brief is trustworthy. It states the facts honestly.”¹²Judge Parker notes that severe distortions of the facts “will actually make me stop reading the brief and go to the district court’s opinion, or even the opposing brief.”¹³

Nevertheless, you can use persuasive writing techniques to tell the story from your point of view, to highlight the facts that are in your favor, and to lead the reader to draw honest and favorable conclusions about your client’s case.¹⁴

When drafting the fact statement, remember that your reader will not be a passive recipient of information, dutifully taking in whatever you have put on the page and doing nothing more with it. Most readers—yourself included—are constantly assessing, using inductive and deductive reasoning, leaping to conclusions, and, at times, leaving the text entirely. In the argument, you will be announcing your conclusions to the reader and then, ideally, supporting them with your analysis.

For example, my father, who served in the Coast Guard in the early 1950s, tells this possibly apocryphal story about a captain and his first mate—and at least one episode of drunkenness:

One day, when the sailors took shore leave, the first mate returned to the ship drunk. The Captain recorded this event, noting, “The first mate was drunk today” in the Captain’s log. The first mate has the responsibility for keeping the log when the Captain is off duty, so he soon saw the note. He was furious; he had never been drunk before, he had been off duty when he was drunk, and he was one of a dozen drunken sailors, none of whose drunkenness was recorded in the log. He decided to retaliate. He knew he couldn’t lie about the Captain, for the Captain would be seeing the log the very next day. So he wrote the simple truth: “The Captain was sober today.”

If you read that log without knowing the details, you would no doubt jump to the conclusion that the Captain was usually drunk; thus, it was worth recording the rare occasion when he was sober. Scholars who study narrative theory note that readers who jump to conclusions probably do so due to their conscious or unconscious awareness of “stock stories,” or “schemas” that they have been accumulating all of their lives.¹⁵Because the state of being sober is an unremarkable fact for most people, a reader subconsciously decides that if the mate wrote “the captain was sober today,” he must have done so because the captain was usually not sober. It may surprise you to learn that narrative reasoning is logical reasoning. It consists of major and minor premises, just as traditional reasoning does. The difference is that the premises are often not included explicitly in the written word; rather, the writer relies on the reader’s schemas to provide one or more of the relevant premises.

Some schemas concern presumptions about how people communicate, as in the first mate story, which we can portray in a syllogism as follows:

If we can assume that the captain was not actually a drunkard, the first mate enlisted his readers and had them tell themselves a lie on his behalf. But even though the mate told the literal truth, he is not innocent of the lie: His knowledge of human thought and behavior no doubt told him how his readers would react, and he wrote his truthful statement conscious of the untruth that would result.¹⁶

I am not telling you this story so that you will make your readers lie to themselves; rather, I want you to realize that whenever people read, many different thought processes come into play: They use deductive and inductive reasoning, and their own knowledge and prejudices, to fill in details and jump to conclusions. Readers jump to conclusions based not only on information that is included, but also based on information that is not included. For example, while I was in the middle of reading a novel set in and written during the nineteenth century, a new male character was described as “clean-shaven.” I suddenly realized that all of the other male characters must have had “whiskers.” I had pictured them as clean-shaven because that fit with my schema, or default image, of adult males: Presume no facial hair unless told otherwise. The author did not believe that whiskers were worth mentioning, for in her world whiskers were the default mode for adult men.

Although narrative reasoning may rely on schemas about human communication, it may also rely on schemas about human or institutional behavior. For example, you may have heard of the economic crisis of October 2008. As it happened, my husband and I were in Paris that week, and it was fascinating to observe the crisis as it was reported by French newspapers (through my feeble translations) and on CNN International.

I found, however, that if I included one or two other details, I got a completely different reaction from my listeners. Sometimes I started the story by saying, “in honor of our twentieth wedding anniversary, my husband and I were in Paris that October.” Instead of shutting down, people almost invariably, said, “Aww! Did you have a good time?” And I was able to go on with my story. At other times, I added the detail that we had stayed in the same hotel that I had stayed in when I visited Paris on a backpacking trip in college. This detail also cut off the “must be nice” reaction and enabled me to tell the story (and since I love telling stories, that was very important to me). I hypothesize that adding these truthful details led to schemas that changed the path of my listeners’ thoughts:

When you are writing a statement of facts, you are trying to tell a story. Recognize that including certain details may lead your readers to jump to conclusions—or refer to schemas —that may help or hurt your case. Aim to tell the story in a way that is consistent with and promotes your legal argument. As indicated above, readers sometimes jump to conclusions; those conclusions may be factual conclusions or legal ones. For example, if you are trying to persuade your reader that certain activities were or were not within an employee’s “scope of employment,” you might tell the story in a way that emphasizes the connection between the challenged activities and the job’s duties and responsibilities. To the extent that you can get your reader to conclude that the challenged activities were “just part of the job,” you have gone a long way to advance your “scope of employment” argument.

Legal writers can also use storytelling method to help their readers understand why certain parties have behaved in particular ways. Professor Ruth Anne Robbins notes that “people respond–instinctively and intuitively” to certain schemas and “character archetypes,” and that lawyers should “systematically and deliberately integrate into their storytelling the larger picture of their clients’ goals by subtly portraying their individual clients as heroes on a particular life path.”¹⁸Professor Robbins advises against casting the client’s opponent (or other antagonist) as a Voldemort-style villain.¹⁹ Instead, she recommends a more benign role: The antagonist is someone who is frustrating the hero, barring him or her from achieving a goal.²⁰

You may want to tell your story in terms of a quest.²¹ What does your client seek? Rather than thinking in pure procedural terms—that your client wants the court to grant or deny a motion, or to affirm or reverse a decision—think in terms of your theme. In the Coors Beer case, for example, Coors wanted to give its customers truthful information about the percentage of alcohol in its beers, but it was thwarted by an outdated government regulation. The government, in contrast, sought to protect its citizens from harmful binge drinking, and it was thwarted by greedy corporations who wanted to make money by promoting excessive alcohol consumption. In Miller v. Albright, the petitioner could have the goal of establishing a relationship with her father, while the government seeks the right to control its borders and to determine who is eligible for automatic citizenship.

Your fact statement can identify the hero or protagonist (perhaps your client, perhaps a legislature, perhaps the constitution) and the antagonists (perhaps your opponent, or some agent of your opponent).²³ Your protagonist, though, is frustrated; its goal has been thwarted by some outside actor or problem.²⁴Seen from this perspective, the antagonist can be a person, a governmental body, or an “absurd” interpretation of a statute. Your client’s goal is not merely a particular court decision; rather, the goal is an experience or status made possible by the court’s decision.

Accordingly, when you are writing your statement of the facts, review your theme and the legal conclusions you want the reader to draw, and consider how those legal conclusions relate to the facts. Recognize conclusions that you might want to lead your readers to, and conclusions you want the reader to avoid. Consider what presumptions, schemas, or “default images,” could be relevant to the case generally, and to people like your client or your opponent in particular. For example, has your client had several drug arrests? Could your readers have certain presumptions about police officers or corporate executives that you want to reinforce or rebut? As I did with my Paris story, you might want to add certain details that will lead your readers’ thoughts in a good direction.

For example, if you want the court to overturn your client’s criminal conviction, it might help the court to decide in your favor if it believes both that your client was treated unfairly and that your client is essentially an innocent person who was in the wrong place at the wrong time (a familiar schema). Your fact statement can include the details that will help the reader reach these conclusions independently. In Holloway v. United States, 526 U.S. 1 (1999), for example, counsel for Mr. Holloway had to convince the Court that it should overturn a conviction under the federal carjacking statute. The controversy centered on whether Holloway’s participation in the carjacking constituted sufficient “intent to cause death or serious bodily harm.” Holloway (petitioner at the Supreme Court) admittedly had been part of the carjackings, and a carjacking is a frightening crime to most people. One (student) counsel for Holloway tried to add details in the facts that would contradict the presumption that someone who would participate in a carjacking would be a violent person, and essentially tried to portray the client as an innocent who was trying to make the best of a bad situation:

GOOD EXAMPLE

Vernon Lennon recruited Petitioner to steal cars with him. Record 156. Lennon showed Holloway the revolver that Lennon planned to carry during the commission of the robberies. Apparently, it was Holloway’s job to drive the “getaway” car. Id. There is no evidence in the record that Lennon told Holloway that he planned to shoot the victims. Holloway never carried a gun during any of the robberies.

On October 14, 1994, Lennon and Holloway stole a car in Queens. Record 83-84. The car’s owner sustained no injuries. The next day, the two men stole a Toyota and a Mercedes-Benz. Record 84. Holloway never even approached the driver of the Toyota; like the first driver, he escaped unharmed. Id. Lennon and Holloway both advanced toward the driver of the Mercedes-Benz, and Lennon produced his gun and threatened to shoot. Record 84. When the driver hesitated momentarily, Holloway stepped in and struck him once, before Lennon could take any action. Id. At this point, the driver surrendered his keys and fled, essentially unharmed. Id.

These details emphasize that Holloway never carried a gun and that none of the victims were shot. In the last incident, Holloway seems to become a legitimate hero; it appears that he prevented Lennon, his accomplice (or perhaps, in this telling, a bullying ringleader), from shooting one of the victims.

Particularly if your client is a criminal defendant, your reader — a judge or a law clerk — may have a hard time understanding his behavior. The reader may be thinking that she would never break the law in such a way, and so she may find it hard to comprehend the reasoning behind the decisions your client made that put him into the court’s jurisdiction.

In Whitfield v. United States, for example, the Supreme Court was asked to interpret a statute that would determine the prison sentence of a man who had committed an attempted bank robbery. Counsel for Mr. Whitfield opened the factual description portion of the fact statement by trying to put his client’s behavior into a more positive context:

GOOD EXAMPLE

In September 2008, Larry Whitfield was a 20-year-old with a high-school diploma and no criminal record. His mother was serving an extended tour of military duty overseas, leaving Whitfield alone to care for himself and his younger brother. Unable to carry this burden financially and overwhelmed by the recent loss of his job and car, Whitfield decided — together with Quanterrious McCoy — to rob a credit union in Gastonia, North Carolina.²⁵

This description does not absolve Whitfield of responsibility; it specifically notes that he “decided” to rob the credit union. It attempts to evoke sympathy, however, by reminding the court that the defendant had no previous record and that he was shouldering extra responsibilities while his mother was serving her country overseas.

After you have considered your theme, the conclusions you want the reader to draw, and the schemas you might want to exploit, make a list of all of the facts that are relevant to your case. You may consult the abstract of the record, the record itself, the lower court decisions, and even the argument to come up with all of the legally (and emotionally) significant facts. (Be certain, of course, not to mischaracterize facts that were offered into evidence and rejected.) Perhaps divide your list into three parts: neutral facts, positive facts, and negative facts. As you tell your story, you can use some or all of the following persuasive techniques to highlight the positive facts and “lowlight” the negative ones.

a. Positions of Emphasis

An easy and effective way to highlight information is to put it into positions of emphasis within the document. Readers subconsciously pay more attention to information that appears before or after a mental or physical break within the document. Thus, both the beginning and the ending of the fact statement are positions of emphasis, as are the beginnings and endings of any heading sections within the facts, and even the first and last sentences of paragraphs.

When writing your fact statement, strive to put your “positive facts” into positions of emphasis. You may even create positions of emphasis by inserting topical headings, by creating paragraph breaks, or by using headings to separate the introduction from the fact statement or the fact statement from the statement of the “case” (i.e., the description of the proceedings below).

b. Pointillism

One way to think about the power of narrative reasoning is to compare it to pointillism, a painting technique developed in the nineteenth century by Georges Seurat. Instead of mixing red and blue paint on his palette to make purple paint, Seurat painted red dots next to blue dots and allowed the viewer’s eye to “mix” the color. Legal writers can practice pointillism to try to control the way the reader sees information in the fact statement. If you put certain facts next to certain other facts, the reader’s brain may “mix” the information to draw the conclusion that you want. When making your list of facts, try to identify facts that can be paired, either to lead the reader to draw a good conclusion or to prevent the reader from drawing a bad one. For bad facts, use the “buddy system”: Make sure that every bad fact that is included in the statement is paired with a good fact that explains (or neutralizes) its presence. Certain negative facts will look better if they are juxtaposed with a good fact, or even a neutral fact that readers can use to explain to themselves why the negative fact occurred or why it is not significant. For example, in the case of Miller v. Albright, 523 U.S. 420 (1998), Ms. Miller, who was born in the Philippines, was trying to establish United States citizenship through her relationship with her father, a United States citizen. One reason that had been given for limiting the ability to establish citizenship in this way was the prevention of fraud. Ms. Miller’s father had not been listed on her birth certificate, a “bad fact” that needed to be addressed. One writer tried to put that fact into a good context in the following way:

GOOD EXAMPLE

Ms. Miller was born in the Philippines on June 20, 1970. App. 15. Although her birth record did not include her father’s name, a voluntary paternity decree issued on July 27, 1992, by a Texas state court established Charlie R. Miller, a United States citizen, as her biological father. Pet App. 37.

Thus, the reader learns that even though the father’s name was not on the birth certificate, he was willing to have paternity established by a voluntary paternity decree. This juxtaposition would encourage readers to conclude that their relationship was a legitimate one and that fraud was not an issue here.

c. Spending the Reader’s Time, Saving the Reader’s Energy

To make sure that your reader remembers the positive facts in your case, make him or her spend more time and less energy on them. Use several sentences to make a point instead of crowding the information into one sentence.²⁶ Be as concrete as you can be when describing a positive fact so that the reader doesn’t have to figure out what happened. Conversely, when you want to deemphasize a fact, don’t spend much time on it, don’t go into a lot of detail, and don’t use concrete language. For example, in City of Indianapolis v. Edmond, 531 U.S. 32 (2000), a case about the constitutionality of drug interdiction roadblocks, counsel for the city of Indianapolis might describe the police procedure succinctly:

Traffic stops consist of two simple steps: Officers verify the driver’s license and registration, and then conduct a quick walk-around of the car with a narcotics-sniffing dog. Record 57a. They conduct a more thorough search only if the narcotics dog, plain-view, or plain-smell observation reveals a suspicion of narcotics possession, or if the driver gives explicit consent to search. Record 57a, 53a.

These two rather long sentences give a complete, but not detailed, account. The reader would have to expend energy to identify the details that this brief description implies, and more than likely would not do so. Counsel for the respondent, on the other hand, might describe the police procedure in greater detail:

Upon entering the checkpoint, an automobile’s driver and occupants are subjected to a number of examinations, which are conducted by Indianapolis police officers. Record 57a. First, the officers approach the vehicle, and the driver is asked to produce both a valid driver’s license and the registration for the vehicle. Record 57a. After one officer examines and verifies this documentation, other officers scrutinize the vehicle in two ways. First, they use plain-view detection techniques, looking through the vehicle’s windows. In addition, they use plain-smell methods, sniffing the air around the car as they walk around it. Both of these techniques are used to determine whether the officers can discover probable cause that would allow them to conduct a more invasive search of the automobile and its occupants. Record 57a. Furthermore, if the officers can persuade the driver to consent to a search, they can conduct an even more extensive search of the vehicle. Record 53a. One other method of search is used during even routine stops: A narcotics detection dog is walked around the exterior of the vehicle, in a final attempt to discover probable cause to search the vehicle for narcotics. Record 57a.

Notice how the writer has unpacked the details to state explicitly information that is implicit in the first example. In the first example, the officers “verify license and registration.” These words imply request, retrieval, handing over, and inspection; the second example provides these details to create an impression of significant intrusion on the driver and the passengers. The writer provides every detail; the reader does not have to spend any energy figuring out things on his or her own. The numerous sentences, the level of detail, and the word choice all work to create an image of a long, intrusive stop. If the reader believes in minimal police intrusion without probable cause, he or she could be halfway to a favorable conclusion merely after reading the statement of facts, for it will have created a concrete picture in the reader’s mind of precisely what a “routine stop” entails.

Of course, as with any persuasive method, use good judgment. If you go overboard in either direction, you will hurt rather than help your argument.