No lawyer ever has a perfect case. Every dispute has two sides and no person or entity is perfect in everything they do. Thus, the facts of a case will always include some that are adverse to your client. This is likely especially true if your client was the loser in the trial court and you are now representing the client on appeal.  This post will provide some suggestions on how to lessen the impact of adverse facts when writing an appellant’s brief and its Statement of Facts.

One thing you can’t do as an appellate advocate is ignore the adverse facts in the record on appeal. From my five years of experience as a law clerk for the Chief Justice of the Alabama Supreme court and as staff attorney for other Justices, I can tell you that nothing destroys the credibility of a party to an appeal and its counsel with appellate court judges than when the judges learn from the opposing party’s brief that the appellant was not completely forthcoming in the Statement of Facts. Failing to acknowledge adverse facts simply magnifies their importance. So you have no choice but to include discussion of the adverse facts in the appellant’s brief. The critical issue is how you go about doing that. It should be done in a way that clearly acknowledges them, but doesn’t bring attention to them. While every experienced appellate attorney can probably offer a few suggestions, I think the following are useful.

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In the Middle.  There is a television series about a lower-middle class family in Indiana called “The Middle.” The name refers to the fact that the media are concerned with what happens on the East and West Coasts of the United States, but not the rest of the country in between  — the middle.  The same is true of what a reader recalls after reading a lengthy section of narrative such as a Statement of Facts.  Readers will remember clearest the beginning points, when their attention was the strongest, and the last points, the ones drawing the narrative to a close. The rest — the middle — is read, but without rapt attention.  So, state your strongest facts first, save other important ones for the end, and the place your adverse facts in the middle. Put them there in plain sight for the judges to see, but hopefully not remember.

Onions in the Meatloaf.  As a kid I didn’t care for eating onions. I refused to eat them when we would occasionally have liver and onions for dinner. But when my mother chopped up the onions and mixed them with the hamburger meat, bread crumbs, and other things in a meatloaf, I hardly knew they were there. The same strategy applies with regard to adverse facts. Mix them up — in the middle — with positive or neutral, unimportant facts. That way the adverse are truthfully presented to the appellate judges, but spread out in such a way that their importance seems lessened.

“Go Long. ” No, I’m not trying to get you to run a post pattern. I’m referring to paragraph and sentence length.  As discussed in my March 27, 2012, post about using the fiction writing technique of “pacing,” shorter sentences and paragraphs help keep the reader engaged, while longer sentences and paragraphs tend to disengage the reader.

As a general rule, shorter paragraphs help keep the reader engaged with each sentence, while longer paragraphs tend to make the reader begin to skim, searching for the most pertinent information and disregarding the rest. However, a series of short paragraphs can make the writing seem choppy, bouncing from one idea to the next. The same generalities also apply to length of sentences. The answer in brief writing, as in writing a novel, is a blend of sentence and paragraph lengths.

Thus, when presenting adverse facts, consider presenting them in longer sentences, mixed in as a part of longer paragraphs.

Use Passive Resistance. I’m not referring to Mahatma Gandhi or Martin Luther King. I’m referring to passive voice.  Writing instructors advise you to write in the active voice. In the classic guide,”On Writing Well,” William Zinsser commented that: “[t]he difference between an active-verb style and a passive-verb style — in clarity and vigor — is the difference between life and death for a writer.” Thus, when you want to make your points or facts stand out to the reader, the active voice is best.  But when you want to lessen the impact of adverse facts, write in the passive voice to lessen clarity and vigor.

The next time you write a brief and have to disclose adverse facts, try using one or more of these suggestions to lessen the impact those facts will have on the judges.

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