"Tell a story." This oft repeated, seldom explained command is a common refrain told to law students learning to draft a statement of facts. It sounds simple enough. But telling an engaging story is hard, especially when the story has to include tedious but important factual details. A poorly crafted statement of facts fosters no pathos. It leaves the reader indifferent to the fate of the main character. And since the statement of facts is often the first thing a judge or fact finder reads, a weak story may result in a judge feeling confused, frustrated, or unmoved. Not a great way to further your client’s interest. In order to persuade, lawyers must hone their storytelling craft. Fortunately, storytelling is a skill that can be refined through practice.
Stories are the primary way in which humans convey information and process the world around them. The story told in the statement of facts will color the lens through which the reader views the subsequent legal arguments. A compelling statement of facts uses storytelling to cultivate the persuasive power of common sense and compassion. Selecting and organizing the facts are two key steps in preparing an impactful fact statement.
When selecting which facts to include, Prof. Linda H. Edwards recommends including facts that fall into one of the following five categories: (1) facts that fit the theory of the case, (2) all legally significant facts, both favorable and unfavorable, (3) all facts that will be mentioned in the argument section, (4) significant background facts, and (5) emotionally significant facts. Unlike screenwriters or novelists, professional and ethical standards prohibit lawyers from creating, embellishing, or concealing material facts. Misrepresenting facts is ethically and morally wrong. If that isn’t motivation enough to be extra careful when reporting facts – keep in mind it is an act of self-sabotage. Any misrepresentation will profoundly diminish the writer's credibility. Opposing counsel will certainly report the facts you have omitted, and a judge will question the veracity of your other statements. On the flip side, being forthright about adverse facts, and providing context and explanation will help mitigate their prominent role in an opposing party's fact statement.
Legal writers can emphasize the facts that further their theory of the case using placement, detail, and quotations. Place the information you want to emphasize in the beginning to capitalize on the reader's heightened attention span. Front-loading information and repeating important points as much as possible helps emphasize the information’s importance. Place material you want remembered at the end as it creates the longest lasting impression on the reader. Facts that must be included but you would like to de-emphasize should be placed in the middle.
Organization, or "plot", is central to a well-told story. A common pitfall when drafting a fact statement is to treat all facts as equal by placing all important facts, adverse facts, and details in a chronological sequence regardless of their weight and impact. In doing so, the writer misses an opportunity to create emphasis and provide necessary context and explanations.
There is nothing wrong with a simple chronological organization, especially in straight-forward cases. In these situations, a chronological statement of facts makes sense. But, whenever it is possible to use a different organizational structure to emphasize facts without confusing the reader, the writer should do so. One alternative organizational structure is to lay out the facts by topic. For example, in case involving breach of a sales contract for non-delivery, the claimant’s statement of facts may be organized in reverse chronological order, starting with the negative repercussions of the opponent’s breach and working backwards to explain how the current situation arose. Doing so hits the reader hard at the outset with the reason why ruling in your client’s favor is necessary. You can follow up with a summary of the nature of the seller’s business, the formation of the sales contract, and the failure to perform. Whether organizing facts chronologically, by topic, or by theme, the most important feature in any piece of writing is clarity. The reader should have a clear picture of what transpired after a single reading. This means that the basic tenants of good writing must be observed: context before detail; short, clear sentences; and meticulous editing.
Every lawsuit is born from some conflict or human drama - a story. While these stories are about very real people with real problems and concerns, fiction writing techniques may provide some useful tips for drafting an effective fact statement. Professors Foley and Robbin have written an excellent primer on how to tell effective legal stories by looking to expert story tellers. The next time you feel moved by a story in a book, a song, a film, or a podcast, ask yourself: what moved me about this story and how did the storyteller do it? For inspiration, I can recommend some of my favorite storytellers: Hillary Mantel, Jesse Armstrong, Stacey Schiff, and Warren Zevon.
Comentarios