While a law clerk and then a staff attorney at the Alabama Supreme Court for a total of five years, I’m sure I read more than a thousand appellate briefs, and followed several hundred appeals from submission to decision by the Court.  That experience taught me that a great set of facts trumps everything else — even case law that might be considered controlling precedent.  Precedent can be distinguished if a court desires, and nothing will make a body of appellate judges want to distinguish controlling case law like a set of facts demonstrating a tragic wrong that cries out to be corrected.  Thus, in many cases the Statement of Facts is the most important section of an appellate brief.  And given its importance, it deserves great attention by the brief writer.  A Statement of Facts needs to be written, modified, cut, and sharpened until it tells a compelling story that makes the most of the facts favorable to the client, without ignoring any weaknesses.

When I think of an appeal where the brief’s Statement of Facts told a compelling story, I first think of Orkin Exterminating Co. v. Jeter, 832 So.2d 25 (Ala. 2001).  The case involved Artie Mae Jeter, an elderly African-American woman in Tuskegee, Alabama, whose home was so badly damages by termites — because of the Orkin Man’s negligent termite treatment years earlier — that it could not be repaired and needed to be torn down and rebuilt.  Since Orkin didn’t want to pay off the $100,000 termite damage repair bond on the home, the company and its representatives  engaged in more than a decade of fraud, often with the knowledge of and direction from corporate headquarters.  The fraud included, a negligent application of termiticide, convincing her to pay for installation of support jacks that Orkin was due to provide for free, convincing her that termite damages was actually water damage, falsifying the scope and degree or termite damage, and informing her that the young man with no carpentry experience whatsoever  sent to perform minimal repairs to her home actually had sufficient expertise and was there to repair all the termite damage.  These facts were proven at trial by abundant evidence, including a lengthy and highly damning memo from the local district manager, Bill Maxwell, to his supervisor at headquarters.  The memo concluded that they could repair the house just enough to keep from falling down, that Ms. Jeter was old and wouldn’t live much longer, and that once she died her children would sell the house and no one would know.

Ms. Jeter is 78 years old, black, in poor health, no money, we do not have a [damage] graph, her house was improperly treated, we sold her twice with no documentation of existing conditions, home is badly eaten up by termites to the point of breaking apart.  ….

Our chose (sic) is we can spend $ 5000 now and have her put in small claims over the years until she dies and her children sell the house, or if any attorney gets involved, we will probably buy her a new house, thousands in punitive damages and attorney fees.

Fortunately, Ms. Jeter lived long enough to file her lawsuit against Orkin, though she died before trial.  A Macon County, Alabama, jury returned a verdict against Orkin of $800,000 in compensatory damages (the $100,00 bond plus $700,000 in emotional distress damages) and $80 million in punitive damages.  In the aftermath of the new judicial review standards for punitive damages established by the United States Supreme Court in BMW v. Gore, 517 U.S. 559 (1996), a case which reversed the Alabama Supreme Court and left Alabama judges gun-shy about upholding punitive damages, the trial court judge remitted the jury verdict to $400,000 in compensatory damages and $4 million in punitive damages.

Orkin appealed the judgment entered on the remitted verdict to the Alabama Supreme Court, then newly composed of a majority of conservatives justices supported by the Business Council of Alabama and the tort-reform front group, Alabama Voters Against Lawsuit Abuse.  Orkin’s appeal of the judgment in a case arising from Macon County, a venue widely renowned for large verdicts against corporate defendants, sought to have a judgment rendered in its favor as a matter of law on the claim for punitive damages.  Its appellant’s brief used just a few pages establishing just the very basic facts of the case and the remainder on an extensive legal argument regarding the impropriety of awards of punitive damages.

In considering how to write the appellee’s brief, I knew that Orkin’s strategy had been to try and keep the Alabama Supreme Court ignorant of the egregious facts of the case and that the only way to have the Court uphold any part of the punitive damages award was to make sure the Court was fully aware of the extent and nature of Orkin’s misconduct against Artie Mae Jeter.  However, to tell the entire story of Orkin’s decade of fraud would require using almost the entirety of the brief on the Statement of Facts, leaving little opportunity to rebut Orkin’s legal arguments.

After much consideration, we decided that if we could make the Court understand the depravity of Orkin’s conduct toward Ms. Jeter, none of Orkin’s legal arguments could succeed in convincing the Court to undo the punitive damages award.  Using that strategy, the Statement of Facts in our brief included both a summarized time line of facts and about fifty  pages of narrative, along with this summary:

The nature of the Defendants’ misconduct against Artie Mae Jeter is truly unconscionable, intolerable in a civil society, and is justly deserving of the jury’s substantial verdict.  The Defendants concealed the truth about the tremendous termite damage to Mrs. Jeter’s home, misrepresented the facts, and outright lied to her, an elderly black woman without a high school education.  They did so in order to keep Mrs. Jeter from learning that the termite damage was so bad that her house was “unfixable.” [C.1114] Defendants utterly disregarded their contractual obligation to Mrs. Jeter in order to get away as cheaply as possible by merely propping up her house to keep it from falling down while at the same time promising her that the damage was fully repaired.  They did so in order to save Orkin nearly the entirety of the $100,000 termite damage repair guarantee owned by Mrs. Jeter and on which Orkin was clearly liable in full.

The Defendants’ purposeful strategy of fraud and deceit nearly succeeded.  This plan to conceal the truth from Mrs. Jeter, to “spend $5,000 now and have her put in small claims over the years until she dies and her children sell the house” [C.1116] (emphasis added), was successful for many years while Mrs. Jeter continued to live in a substandard home, never knowing of Orkin’s fraud.  The only problem for the Defendants is that Artie Mae Jeter, described in an Orkin internal memo as “78 years old, black, in poor health, no money,” who they expected to die before too much longer [C.1116], did not die soon enough.  She lived long enough for the Defendants’ lies to be revealed and the truth exposed when Maxwell’s December 12, 1988 memorandum was discovered.  Artie Mae Jeter lived long enough to learn of her betrayal by a man and company she had trusted to honor their word and written guarantee, and to file this lawsuit seeking justice.  Unfortunately, did not live long enough to see justice delivered by the verdict of twelve impartial jurors.

This gamble on an appellee’s brief of little more than a Statement of Facts was ultimately a success, as the Alabama Supreme Court upheld $2 million in punitive damages.  Justice Gorman Houston (now retired), one of the more respected jurists in Alabama, noted that he supported a $2 million punitive damages award even though it exceeded the benchmark of a 3:1 ratio to compensatory damages he had adopted in earlier opinions.  The effectiveness of the appellee’s brief’s emphasis on the Statement of Facts is evident from this segment of Justice Houston’s special concurrence:

I have served as a Justice on this Court for more than 16 years. The reprehensibility of the defendants’ conduct was great — as great as any I remember. To save money, the defendants violated their duty to Mrs. Jeter and subjected her to bodily injury or death in what she thought was the safe sanctuary of her home. I have no hesitation in supporting a $2,000,000 punitive-damages award in this case, regardless of the ratio such award bears to the compensatory damages.

832 So.2d at 43-44 (emphasis added).  Additionally, Chief Justice Roy Moore of the Ten Commandments monument fame, who later lost his seat for failing to obey a federal court injunction to remove the monument (And has again become chief justice), dissented from the majority’s decision to remit the $4 million punitive damage award.

I think it’s evident that if we had taken up the challenge posed by Orkin’s appellant’s brief to argue extensive legal points, such as the public policy and constitutionality of punitive damages, we would have been playing to Orkin’s strength and ignoring our own, and I don’t think there was an effective middle-ground in that case of balancing the brief between setting for the facts and making legal arguments.

 I don’t mean to say that every appeal brief should have a detailed and lengthy Statement of Facts. As noted by Justice Houston, few cases have the kind of egregious facts found in  Orkin v. Jeter.  But every case has facts, with many of them favorable to your client.  Every opportunity must be taken to emphasize the facts that humanize your client, that engender sympathy, and tell the story you want the appellate court to understand. As I learned as a staff attorney at the Alabama Supreme Court, it is easier to win an appeal if the justices view your client sympathetically as the ordinary Joe or Jane who has been wronged, or the corporate good-citizen trying in good faith to stay within the law. Simply put, good facts trump good case law.  Remember that when you write your next appellate brief and give the Statement of Facts the attention it deserves, and make sure you use those facts to your advantage in writing the argument.  This is a topic I’ll discuss in my next post later this week.

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