Example 1.7

Takeaway point 1.7: Keep your Statement of Facts engaging to ensure that readers stay focused.

Formal writing need not be rigid or dry. The following example, for instance, reads like a thriller, even though it also came from a brief filed by the federal government.

Source: Brief of the U.S. government in United States v. Bell, 584 F.3d 478 (2d Cir. 2009).

Some lawyers would use the more precise term “appellee” to refer to Bell — but that term is confusing and abstract, and “defendant” reminds readers that Bell was charged with a crime. Consider, too, the brief’s use of “Detective Murray”; since most courts view the police favorably, this is a sensible choice. (That said, the word “Detective” appears in this short passage seventeen times. Try to make your semantic choices invisible.)

The government begins the description of Bell’s attempted murder with Murray’s mundane request — not with guns blazing. This detail emphasizes Murray’s compliance with procedure and his desire to avoid violence.

The brief stretches out a three-second event into three paragraphs of riveting narrative.

The brief puts readers in the protagonist’s shoes. The brief tells the story from Detective Murray’s vantage, leading us to sympathize with him. Bell’s brief, of course, told the story from Bell’s perspective. When you could tell your case’s story from multiple perspectives or begin at various points, take special care to figure out how to start and tell the story.

The lawyers resisted the urge to guess which type of clothing Bell was holding. Once again, we see great discipline — and sound ethics — by the lawyers who wrote this brief. As an attorney, you are bound to comport with your duty to the courts, as these lawyers do admirably (by sticking to the unclear record).

This part of the brief exemplifies the adage that good writers “show rather than tell.” the lawyers recount concrete details that lead readers to conclude that Bell did not fire in self-defense: we are shown that Bell’s hand was on the trigger of his silver revolver, that Murray was scared, and that Bell was about to shoot. Stories are vastly more effective and engaging when the facts speak for themselves and when the readers reach conclusions on their own.

This issue is one of the critical disputes in the trial: was Bell acting in self-defense? If Murray had shot at Bell without provocation, he wouldn’t have yelled “gun.” Thus, the nine citations that support this point are designed to convince readers that Bell pulled out his gun to shoot Murray.

Lawyers want, of course, to write with certitude. But here, the lawyers arguably increase their credibility about other issues by acknowledging once again the limits of their knowledge on this specific issue (i.e., how many times Murray fired his gun). But avoid uncertainty whenever possible because it raises questions; here, for example, readers might wonder why it isn’t possible simply to check Murray’s gun to see how many rounds had been fired. The answer becomes clear in a subsequent part of the Statement of Facts when readers learn that Murray fired his gun again later in the shootout.

By using the word “also” — and by mentioning the defendant’s gunshots so prominently — the brief obscures the damaging facts that Murray shot first and that the defendant shot back in response, which sounds like self-defense. Replicate this technique to downplay bad facts. J Yet again we see that show is better than tell. After showing the exact heights of the bullet holes and of Murray, the brief lets readers figure out for themselves that these shots were intended to kill Murray.