In this part of the book, we examine how lawyers use facts to advocate for their clients.
Chapter 1 describes the basics: how to tell the court about a dispute in a way that favors your client while preserving your credibility. Chapter 2 explores a vital technique that inexperienced lawyers often overlook: using the procedural history of a case (i.e., what happened during the lawsuit) to help your client.
And Chapter 3 presents a variety of advanced techniques that great lawyers use in their factual statements.But do facts really matter? Absolutely — and demonstrably. In a recent study, a federal magistrate judge tested the effect of facts on decision making. He gave a group of approximately 300 judges (1)a criminal statute that prohibited undocumented immigration and (2) a short description of the defendant who was charged with violating this statute by entering the United States illegally. Everything was identical except for one detail. Some of the judges were told that the defendant had violated the law to earn money for his daughter's liver operation; other judges were told that the defendant had come to the United States to find someone for a drug cartel. Both hypothetical defendants raised the same legal argument. Even though each group of judges received an identical statute, the “good” defendant had a 43 percent better chance of avoiding prison than the “bad” defendant.1 Thus, while an effective Statement of Facts won’t win every case, framing facts effectively will greatly increase the chance of achieving favorable outcomes for your clients.
And a judge who thinks your client deserves to win can also influence the outcome of a case in many other ways, such as giving a plaintiff multiple chances to amend a complaint, allowing ample or narrow discovery, letting a case that relies on strained inferences to survive summary judgment, ruling favorably on objections, providing helpful instructions to a jury, awarding damages or making sentencing decisions, and so on. You do not want a court to view your client as the bad guy.
And your facts, of course, introduce your client to the judge and thus shape the judge's view of the parties and the dispute.Remember, however, that you need to keep your argument in mind as you write your facts; your client has a fool for a lawyer if you tell your client's story without assessing first whether, in light of the applicable law, those facts can support the outcome you want. To win lawsuits, you must tether facts to the law.
Let’s review some examples to see how top lawyers achieve the various goals described above. If all goes well, you will tell tight, compelling stories that live up to the following insight from one of the nation’s great jurists: “The mark of a master is that facts which before lay scattered in an inorganic mass, when he shoots through them the magnetic current of his thought, leap into an organic order, and live and bear fruit.”2 The next few chapters demonstrate how to achieve this goal.
1. Conversation with U.S. Magistrate Judge Andrew Wistrich (Feb. 9, 2011).
2. Oliver Wendell Holmes, The Use of Law Schools, in Collected Legal Papers 35, 37 (The Lawbook Exchange 1952) (1920).