Commandment #8--Explain the Facts and the Law in an Organized, Coherent Manner

#8—Thou Shalt* Explain the Facts and the Law in an Organized, Coherent Manner

Explaining Facts

The facts should be organized so they tell the story of the litigation.  The best organizational scheme will often depend on the strength, relevance, and perceived persuasive value of those relevant facts.  Often, the facts are best presented in chronological order.  Sometimes, however, a topical approach is best.  And at other times, a combination of the two approaches provides the best result.  If you aren’t sure, default to chronological order. 

If the facts are lengthy, complex, or can’t be easily organized chronologically, use subheadings to guide the reader and increase the flow and clarity of the factual story.  Assume you’re involved in a complex breach of contract case where the parties entered into a services contract, which references and incorporates a lease contract, and the services contract at issue was assigned by one of the parties.  The following types of subheadings will help the court sort-out the complex nature of the relationship:

The Service Contract

The Lease Contract

Arthur Assigns the Service Contract to Terry

Facts are critically important in brief writing.  Ensure your fact section tells the story of the case in a way the court can easily understand.

Explaining Law

When presenting the law, general legal authority should usually be presented first, followed by more specific, nuanced concepts.  If you represent a defendant in a tort case, for example, and are filing a motion for summary judgment, list the elements of the tort first and then delve deeper into what the plaintiff must prove to establish each element.  Assume you represent a plaintiff in a California who is suing for invasion of privacy:   

To allege a tort claim for invasion of privacy under California law, a plaintiff must prove (1) public disclosure; (2) of a private fact; (3) the disclosure of which would be objectionable to a reasonable person; and (4) the fact is not of legitimate public concern.” Shulman v. Group W Productions, Inc., 18 Cal. 4th 200, 214 (1998).

Disclosure is considered public if it is made to the public generally or to a large group of people. Kinsey v. Macur, 107 Cal. App. 3d 265, 270 (1980).  Disclosure to a single person will not suffice. Id.

And if an element (or two or three) is not at issue—say so up front.  Don’t make the court wonder why you aren’t addressing a particular issue or element.  Take the same example from above.

To allege a claim for invasion of privacy under California law, a plaintiff must prove (1) public disclosure; (2) of a private fact; (3) the disclosure of which would be objectionable to a reasonable person; and (4) the fact is not of legitimate public concern.” Shulman v. Group W Productions, Inc., 18 Cal. 4th 200, 214 (1998).

The parties agree that David publicly disclosed information about Hunter and that the disclosure would be objectionable to a reasonable person.  Thus, the only issues before this Court are whether the information disclosed was private and of legitimate public concern.

Information is private if it is not known by or available to the public. Sipple v. Chronicle Publishing Co., 154 Cal. App. 3d 1040, 1047 (1984).  Facts that are a matter of public record or available to the public are not private. Green v. Uccelli, 207 Cal. App. 3d 1112, 1120 (1990).  For example, information pertaining to criminal charges and judicial proceedings is not private. Wasser v. San Diego Union, 191 Cal. App. 3d 1455, 1462 (1987).

If you follow these general outlines for presenting the law and the facts, your writing will be clearer and easier for the court to understand.

* A kind blog reader, Douglas Bauman, informed me that "shalt" is actually the proper verb form for the subject "thou."  So, henceforth, I shall use "shalt."  For an explanation, check out this website.  And hat tip to Mr. Bauman--thanks for teaching me something new today!