Open with a Fact That Is Interesting, Relevant, and Favorable
When drafting our fact statement, our first thought should be: Which of our facts is interesting, relevant, and favorable. And we open with that fact to lean the judge in our favor, then follow with another sentence that leans the judge further in our favor:
In December 2018, Plaintiff James Holman asked a co-worker if he knew how to convert an unalterable “pdf” document into an alterable “doc” document. The co-worker did and explained the process to Holman. The document was the 2018 Simmons Commission Plan, a contract for Holman to sign. Before signing, Holman modified it to his benefit, then returned it to the Senior Vice President of Sales. When the Vice President reviewed the signed Commission Plans from his regional sales managers, he noticed that Holman’s was different than the others.
From the very beginning, we are showing the judge the plaintiff’s lack of integrity. But we never use that word; we let the facts speak for themselves.
Avoid Names, Dates, and Numbers, Unless They Are Important
Names, dates, and numbers seem important, so a judge will try to keep track of them—even if they’re not important. Instead of writing . . .
“On January 21, 2019, Gonzales violated company policy when he . . . . As required under company policy, he was provisionally discharged on January 26, 2019. On January 30, 2019, after a provisional discharge meeting, Gonzales’s employment was formally terminated. On February 2, 2019, the Union filed a grievance.”
. . . write something like:
“On January 21, 2019, Gonzales violated company policy when he . . . . As required under company policy, he was provisionally discharged, and, after a provisional discharge meeting, formally terminated at the end of January. Three days later, the Union filed a grievance.”
By doing it this way, we give our judge a time line and still let her know that the process continued fairly and expeditiously without confusing her with insignificant dates.
Don’t Tell the Judge Who They Are, Until You’ve Told Him What They’ve Done
Background information on a party is rarely helpful unless the judge already knows what the party did or what happened to them. If we start with the action, we establish a reason for the judge to want to know more about the party. We open with what they’ve done or what’s happened to them; then we tell the judge who they are. We set our story in motion from the first sentence, then come back to introduce the characters. Instead of . . .
Tideco manufactures a wide variety of kitchen equipment and is one of the world’s leading kitchen appliance companies. Tideco has 46,000 employees worldwide, with approximately 17,000 located inside the United States and 29,000 based internationally.
. . . we open with:
In spring 2018, Tideco’s business performance had exceeded expectations, and management wanted to reward all 46,000 of its employees worldwide with a paid day off: Appreciation Day.
The first thing the judge sees is a fact that presents our client favorably.
Being an advocate is about removing all opinion in our fact statement and lining up our facts in a way that puts the judge in our client’s shoes from the outset. When we do that, we establish credibility with the judge and create empathy for our position, making it difficult for a judge to disagree with our conclusion.
About the Author
Gary Kinder has taught over 1,000 writing programs for the American Bar Association, the Social Security Administration, PG&E, Kraft, Microsoft, and law firms like Jones Day, Sidley, and WilmerHale. His critically-acclaimed Ship of Gold in the Deep Blue Sea hit #7 on the New York Times Bestsellers List.