WHEN “THE FACTS” ARE NOT THE FACTS

Most lawyers think you win appeals with erudite dissertations on the law. Not me. The law matters, but the facts matter more.

When I was a kid, I used to watch a TV show called Dragnet. L.A. homicide detective Joe Friday (who never smiled) would interview a befuddled witness with this reassurance: “Just the facts, ma’am. Just the facts.”

I grew up (?) to be an appellate lawyer, and I now face appellate judges who want me to begin my briefs with “Just the facts, man. Just the facts.”

Why? Because when they pick up a new case file, they know absolutely nothing about the case. Before they can understand the arguments for reversal, they need to know what happened. It’s my job to tell them – right off the bat.

Many lawyers don’t get this. They begin with a lengthy “Introduction” that argues the case, without first summarizing the story. Once a judge realizes this, she just skips the Introduction. So the lawyer did all that work for nothing.

And presenting a full Statement of Facts right after the Introduction is essential.

For me, however, it’s more than essential. It’s a way to win the appeal – right on the spot. If I can write a Statement of Facts that shows that my client was treated unjustly – even without any overt argument – I can put the judge in a mood to be receptive to my legal arguments.

But here’s the tricky part: where do you get “the facts”?

Not from the trial briefs. Factual assertions in lawyers’ arguments do not qualify as “facts”. (You can, however, use lawyers’ trial court arguments to show they did not waive or forfeit an issue on appeal by not raising them in the trial court.)

Not from the pleadings. Factual allegations are just that: mere allegations, not facts (unless the appeal challenges the sustaining of a demurrer).

No, facts come from evidence.

But what evidence? Somewhere in the trial court record, you can find evidence that X happened. But you might also find evidence that X did not happen. Which one is a “fact” that you can use in your Statement of Facts?

The answer: it depends on the standard of review that applies to the arguments presented on appeal.

When I write a respondent’s brief for an appellate court, I sometimes lead off with: “Please ignore the Appellant’s entire ‘Statement of Facts’. They are not the facts relevant to this appeal, because they are not in accord with the standard of review applicable to this appeal.”

One time, soon after I filed such a brief, my phone rang. It was opposing counsel – irate. “You have no right to say that! You can tell your client’s story, and I have every right to tell my client’s story!”

I responded, “I agree. You have a constitutional right to make a fool of yourself. When you get a chance, however, you might want to take a look at the appellate court’s standard of review.”

My opponent did most of his litigation in our trial courts, where his approach was the correct one. In a trial brief, you tell the court what your evidence will show, and your opponent tells the court what his evidence will show. Two different stories. Then the judge or jury chooses the story it prefers, and renders its verdict.

All that changes once you get into an appellate court. Which story the court works with depends on its standard of review.

Most lawyers know that there such a thing as a “standard of review” on appeal. Indeed, they dutifully include a section of their brief on this – usually at the outset of the “Argument”. Then they just as dutifully forget about it. They don’t realize that the standard of review operates on all parts
of the brief – including the “Statement of Facts” they included earlier.

Suppose that, after a bench trial, the judge ruled that the defendant was not liable for breach of contract, based on a finding that: “Plaintiff testified that the widgets that Defendant contracted to deliver were
defective, while Defendant testified that they were not defective. I find that Plaintiff’s testimony is more credible than Defendant’s testimony.” Defendant appeals, and his opening brief includes a Statement of Facts that relies mostly on Defendant’s testimony.

My respondent’s brief hits him hard – right off the bat:

Appellant’s statement of “facts” does not state the facts relevant to this appeal. It is based on his own testimony, which the trial court expressly rejected.

Where a trial court finds certain facts, an appellant must convince the appellate court that there was no substantial evidence supporting those findings. When reviewing such findings, the appellate court “must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor in accordance with the standard of review so long adhered to by this court.” SFPP, LP v. Burlington Northern & Santa Fe Ry. Co. (2004) 121 Cal. App. 4th 452, 462.

Thus, the following Statement of Facts is based on the evidence that supports the trial court’s findings.

This can also come up when I write a reply brief. In my opening brief, I usually precede my Statement of Facts with an explanation of where I got those facts. I explain that my choice of where to get the facts was determined by the standard of review that applies to the issues I’m raising in this appeal.

So let’s assume I’m appealing a summary judgment against my client. In my Opening Brief, at the outset of my Statement of Facts, I’ll say something like this (backed by citations to cases):

On appeal from a summary judgment, the appellate court examines the entire record, to determine if there is a triable issue of fact. The record is viewed in a light most favorable to the appellant, with all reasonable inferences drawn in favor of the appellant. The following Statement of Facts is based upon these principles.

The respondent’s brief often ignores this – and simply presents the respondent’s version of the facts, usually taken from the evidence the respondent submitted to the trial court in support of the motion for summary judgment. And this brings forth my reply brief’s terse lede: “Please ignore the Respondent’s ‘Statement of Facts’. They are not the facts relevant to this appeal.”

So tell the story up front, but make sure it’s the story that complies with the appellate court’s standard of review.