Introduction

I suggest you read about shadow stories in Chapter 9, before you begin to write your statement of facts. Shadow stories do not appear in a brief. Rather, they are tools that help you find a theme. They tell your client’s view of the facts on paper without a filter, and the process of writing a shadow story helps you find your theme.

In this chapter you will read about how to transform your shadow story into a credible and persuasive statement of facts (SOF) for a brief. You tell your reader the story in the shadow story. In contrast, you show your reader the story in your SOF. You can tell your client’s story complete with anger, bias, and emotion in your shadow story. When you tell a story, you make your reader feel or think in a particular way about the story based on explicit judgments and opinions. For example, your shadow story would state “the Sheriff refuses to take responsibility for the widespread neglect and abuse at the jail.”

Then when you write your statement of facts, you replace the tell words with facts that show anger, emotion, and bias. Use citable facts- things that can be seen, heard, smelled, tasted, or touched. A fact should be supported directly by a citation to the record. Thus, rather than telling readers that the sheriff refuses to take responsibility for the widespread abuse at the jail, you show it through facts. For example, your statement of facts would state, “When asked about the Department of Justice’s report of widespread unconstitutional conditions at the jail, he testified that “the county jail is not a hotel.” “

Use Facts to Tell your Client’s Story

Use facts, not opinions and emotions to tell your client’s story. Facts are about the physical world. They can be seen or heard and can be verified through objective evidence. In contrast are conclusions and opinions that tell the reader what to think. For example, here the writer tells the reader to think the defendant driver was reckless through use of conclusions (in bold):

“The defendant driver barreled down the road at breakneck speed without any thought to the blizzard like conditions.”

In contrast, here the writer shows the reader the driver was reckless through facts (reference to Cite indicate the writer would cite to evidence in support of a fact):

“The Defendant was driving south on Route 16 during the early morning hours of December 26. Streetlights were 50 yards apart. Cite. The wind was blowing from the south at 45 mph, with gusts up to 65 mph, and it was snowing at a rate of 2 inches an hour. Cite. The posted speed limit was 45 mph, yet the Defendant drove his truck at a rate of about 50 mph. Cite.”

Make it Persuasive

Before you write the statement of facts, develop a theme by exploring the shadow story. See Chapter 9. Then tell your client’s story in a manner consistent with your theme. The statement must be factual, accurate, and without argument, yet persuasive. Accomplish these goals with a creative choice of words and organization to emphasize good facts and diminish the effect of bad facts.

You can also point to the absence of evidence when it helps show a weakness in your adversary’s case. For example: “there is no testimony about [fill in blank with facts the P/D wishes were in the record but are not].”

1. Organize your client’s story into three parts

Most persuasive stories have three parts. They begin in a state of equilibrium, where life for your client might not be wonderful, but it’s okay. Then something bad happens, and the equilibrium is disrupted. Then the protagonist (your client) tries to restore the equilibrium.

2. Define both your client’s character and the other party’s character

Define characters by reciting what they have or haven’t. So, as the attorney for the seller in a statement of facts, you would not describe the buyer as vindictive since that is not a fact. But you could write about what she did do and did not do. For example, she never contacted the seller to ask that she pay to repair the appliances; instead she went to Facebook and called her a liar.

3. Use imagery to tell the story

This is where you decide whether to describe events generally or with detail. Keep your theme in mind as you decide which details to use. Employ oneness, which is the idea in storytelling that the event you are describing can only happen once and has only ever happened once. It is accomplished through the use of detail to ensure that the audience remembers the story.

Compare

The car drove down the street, and

The plaintiff drove her blue 2006 Honda Civic at 10 mph down Main Street block at 6 a.m.

4. Selectively use the present tense when you write the story

The present tense creates a feeling of immediacy that lets your audience identify with the story.

Compare

1. At 3:00 p.m. the rioters ascended the stairs to a locked City Hall. When they reached the building, they broke a window and went inside.

2. It’s 3:00 p.m. and the rioters are ascending the stairs to a locked City Hall. They reach the building and break a window and go inside.

5. Begin with a punch

After you have finished your statement of facts, go back to the start and write a short passage that summarizes your best facts, not with neutral or unimportant facts. Perhaps you’ll describe generally the state of equilibrium and its sudden loss in a few sentences. Then in the rest of the statement tell the story by describing those facts with the right amount of detail.

Here’s an example:

The Phillips family moved into an apartment owned by defendant Hayes in July of 2020. The two Phillips children went to school just a couple of blocks away. Mr. Phillips stayed home and took care of them, while Ms. Phillips worked as an accountant. In May of 2021, their daughter Katherine, then nearly four years old, was diagnosed with severe lead poisoning as a result of her contact with lead-based paint while living in their rental unit. R. 51-52.

Selecting Facts

First, Find the facts that show how the rules have or have not been satisfied. It helps to organize an abstract around the elements. Both the good and the bad. Think of the determinative facts for each issue, those material to each element.

Second, include every fact you rely on in your argument. Go through the application parts of your argument and find every fact you write about. Then check your statement of facts to make sure that it includes every fact that you find in your application and your counter-arguments to “bad facts.”

Third, identify additional facts that help tell your client’s story persuasively. Facts that reveal the character of your client and of the other people involved in the story. Facts that you need to hold the story together. Use the active voice.

Fourth, include bad facts, those that hurt your case. These are the facts that your adversary will rely on. If you do not include them, you will lose credibility. You can minimize the effect of bad facts through placement. Try to neutralize bad facts by juxtaposing them with good ones, either in a paragraph or sentence. Consider using the passive voice to deemphasize bad facts.

Fifth, identify what is not in evidence.

Sixth, eliminate factual clutter.

Now that you have finished this chapter, you should be able to write an effective and credible statement of facts.