Arguing in the Fact Statement

We use the Fact Statement to tell a judge our story. But Fact Statements serve another, more subtle purpose: establishing credibility with the judge.

As Judge Richard Posner of the Seventh Circuit has written:

Circuit Rule 28(d)(1) requires that . . . ‘the statement of facts . . . shall be a fair summary without argument or comment.’

If we want a judge to look favorably upon us and our case, we start in the Fact Statement by removing all argumentative words, like “devastating,” “substantial,” “difficult,” even “tall,” because they are opinions, not facts.

The Angola Diamond Contract is certain enough . . . .

The agreement also clearly stated. . . .

Argumentative words in the Fact Statement make a judge want to decide against us, because these words “feel” like we’re puffing, evading, and being disingenuous. How can he trust us? Instead of using the self-serving, argumentative words above, replace them with the “certain” and “clear” language from the agreements. That language is a fact.

When you write a Fact Statement with not one argumentative word, you convey this message to the judge: “Don’t listen to me, Your Honor; listen to the facts.”

On October 22, 2012, Plaintiff Geraldo Einstein smashed the glass of a candy and chips vending machine with a tire jack to retrieve a bag of chips stuck in the dispenser.

(A real case, by the way.) Geraldo’s lawyer might pretend she does not understand why your client had to terminate Geraldo, but the judge gets it from the first sentence. And you have credibility.