9.2.4 Special Considerations for Motion Brief Fact Statements
As noted previously, the writer of a motion brief faces some special challenges. If you are writing a brief in support of a motion to dismiss, you may be arguing about a question of law.
Nevertheless, you cannot ignore the facts in the complaint, even though they may consist of negative characterizations of your client. The aforementioned techniques for deemphasizing negative facts may be helpful, but you must always balance the desire for persuasion with the need for credibility. If you are too abstract in your description of the underlying facts, the court may distrust you. The following example comes from a defendant’s brief in support of a motion to dismiss. The defendant has been charged with sexual harassment and has been accused of numerous instances of unwanted physical contact with the plaintiff. The description here is technically correct, but it would be very ineffective in a motion brief:
BAD EXAMPLE FROM DEFENDANT’S BRIEF Plaintiff, Lynda Garrett, claims that she experienced gender discrimination during her employment. Compl. ¶ 7. The court gets only a vague idea of what happened in the case and would be surprised when it reads the plaintiff’s version of events: 
GOOD EXAMPLE FROM PLAINTIFF’S BRIEF
While Ms. Garrett was employed by Marvin-Kobacker, Defendant Kirkby created a hostile work environment for her because of her gender. Compl. ¶ 7. Kirkby continuously made sexual comments both to and about Ms. Garrett. Compl. ¶ 7. On an almost daily basis, Kirkby would ask Ms. Garrett to have intercourse with him, often using vulgar language. Compl. ¶ 7a. Ms. Garrett initially ignored Kirkby’s comments and then repeatedly pleaded with him to stop making such comments.
Compl. ¶ 7a.On the other hand, the statements in the complaint are merely allegations, even though they must be taken as true for purposes of the motion. Thus, if you are counsel for the defendant, you should not write your fact statement as if you believe that the statements are true:
BAD EXAMPLE FROM DEFENDANT’S BRIEF
Plaintiff, Lynda Garrett, experienced a hostile working environment during her employment with MarvinKobacker. Compl. ¶ 7. Defendant Kirkby assigned her to an area where she was required to work alone, and he made sexual comments and advances, to which she initially made no response. Compl. ¶ 6. Kirkby touched her in an offensive manner and threatened to fire her if she complained about his behavior. Compl. ¶ 7b.
Instead, put these allegations in the plaintiff’s “mouth”; that is, make clear that these are allegations in the complaint:
GOOD EXAMPLE FROM DEFENDANT’S BRIEF
Plaintiff, Lynda Garrett, claims that she experienced gender discrimination during her employment that created a hostile working environment. Compl. ¶ 7. She alleges that Kirkby assigned her to an area where she was required to work alone. Compl. ¶ 6. Garrett also accuses Kirkby of making sexual comments and advances, to which she initially made no response. Compl. ¶ 6. The complaint alleges that Kirkby touched her in an offensive manner and threatened to fire her if she complained about his behavior. Compl. ¶ 7b.
This paragraph does not hide the fact that the defendant is accused of severe sexual harassment, but it characterizes the allegations as what they are: allegations.
In addition to the controversial facts, there will likely be facts in the complaint that will help the court to understand the arguments, but which both sides agree on. These facts can be stated without labeling them as the allegations of one party or another. Here is an example from the defendant’s brief:
GOOD EXAMPLE FROM DEFENDANT’S BRIEF
Both Kirkby and Garrett were employed by Marvin-Kobacker during the time of the alleged harassment. Compl. ¶ 4. Marvin-Kobacker employs over 200 individuals in its Foster, Rhode Island, location. Compl. ¶ 2.