Writing the Statement of Facts and Statement of the Case

Most appellate briefs begin with a statement of the facts (describing what happened that gave rise to the lawsuit) and a statement of the case (describing the procedural posture of the case.) It is customary to put the statement of the case first, although it is often important to understand many of the underlying facts in order to understand the procedural posture of the case.

Different lawyers approach this problem in different ways, as the following discussion shows.

I have an odd style questions. Should the Statement of Facts or the Statement of the Case go first in an opening brief?

Traditional wisdom puts the Statement of Case first. The theory seems to be that the appellate court needs to know ASAP what the procedural posture of the case is.

However, I think it makes more sense to put the Statement of Facts first. This tells the story chronologically -- the underlying events occurred before the lawsuit did. It also puts the procedural posture of the case in factual context. Discussing the summary judgment motion, or the exclusion of certain evidence at trial, or a key in limine motion often makes little sense without a full understanding of the underlying facts. And a short paragraph or two in the introduction to the brief that explains the procedural posture of the case will put things in context, without boring and confusing the appellate court.

What do other people think? I would be especially interested in the thoughts of current or former appellate court clerks or research attorneys (or judges, if you are out there).

Date sent: Sat, 13 Sep 97

Depending on the particulars of the case, I have found a "summary of the case" which goes slightly into the best facts and a little into the procedural history to work well, whether as its own independent section or as part of the statement of the case.

While in law school I worked with two different appellate courts as an extern working with both the Mass. SJC and a fedeal appeals court, in both instances I was assigned the role of handling the less complex cases (about 10-15 for each court). I can't tell you how many clerks told me to look for a capsular summary in the best brief, rephrase what's written and use that for the facts and procedural history.

One thing that many lawyers who do appeals (versus appellate lawyers, two different breeds in my book) is they forget the have two audiences, the judge who is going to rocket through the case, in most instances and the clerk or research attorney who is going to prep the judge with memo and recommended disposition. Win the clerk over and the judge is the much easier.

I've kept this in mind as I write briefs now (capital habeas litigation), and wherever possible I try to softball the clerks office with an encapsulate combination hoping they were told the same thing I was.

Date sent: Sat, 13 Sep 97

I clerked for Justice Gorman Houston at the Alabama Supreme Court, and my favorite briefs to read were ones that limited the Statement of the Case to a couple of pages, briefly describing how the case came to be in front of me (well, in front of the judge, but hey, you can get a swell head pretty quick working there). That gave me the proper context in which to read the Statement of Facts, i.e., what happened in the trial court or the lower appellate court that gave the Supreme Court jurisdiction over the dispute.

Once I knew, procedurally, why they were there, I then knew how to "read" the Statement of Facts and what the proper standard of review was.

Most Federal Circuits have "local" rules requiring the Statement of the Case before the Statement of Facts, don't they? The 11th Circuit does, but then I just read an article complaining that the Federal Circuits shouldn't have so many local rules.

Date sent: Sat, 13 Sep 97

I agree. Without a short Statement of the Case, the reader has no "road map" as to the history of the case. In earlier years, I wrote detailed Statements of the Case which flagged every issue. More recently, I tend to write shorter Case Statements and confine the issue-flagging to my argument caption headings, although sometimes I will include more info in the Case Statement if I think the situation warrants it. The important thing, in my view, is that -- just as with law and motion -- the reader is given a very quick grasp of the issues, and as I said, a good topical index with descriptive caption headings can achieve this.

Date sent: Sat, 13 Sep 97

In my experience, every court I've been in states in its rules the order of the various sections. If the order for the procedural history and facts is not specified, it would seem to depend on what is most important to the appeal on a case-by-case basis.

Date sent: Sat, 13 Sep 97

Is not this question academic? I practice in Mass and as I recall the Rules of Appellate Procedure set forth exactly what a brief must contain and in what order. I also believe this is the case for the First Circuit too.

Date sent: Sat, 13 Sep 97

The California Rules of Court specify that a brief must contain a statement of facts and a statement of the case, although they do not specify the order. I assume that other jurisdictions also do not specify the order. For those that do, the question is moot.

Date sent: 16 Sep 97

In Florida, the appellate rules specify statement of the case and of the facts, but the judges are fairly liberal about the presentation, and after 10 years, I've seen more facts first -- but usually with some short introduction of procedural posture that probably fulfills the "case" requirement.

Date sent: Sat, 13 Sep 1997 15:07:51

I usually put a "preliminary' statement of the procedural posture of the case first, followed by the facts, folowed by any additional necessary procedural history. This is what our New York appellate judges like. The "preliminary" statement in New York is very brief (typically five to ten lines) but there is one DA's office that runs on for two pages, before they get to their statement of the facts.

Date sent: Sat, 13 Sep 97

This is pretty much what I had in mind, although I would include this "preliminary" statement in the introduction itself. The California Rules of Court do not specify the order for the statements of facts and of the case, and actually state that the two can be combined.


I agree with your approach, provided that an introductory statement is allowed. I am always a little nervous to include one since it is generally not included among the sections of the brief described in federal or our state's [Hawaii's] rule 28. I think if you go beyond a couple paragraphs, it seems there is a risk the brief would be stricken for not adhering to form.

Date sent: Mon, 15 Sep 97

I usually put the Statement of the Case first, as the big heading, and include Procedural History and the Statement of the Facts as subheadings under the Statement of the Case heading. I generally provide the procedural history before the statement of facts unless the history is too complex or wouldn't make sense without first knowing the underlying facts.

Date sent: Mon, 15 Sep 97

NY Rules typically require a statement of questions presented and a statement of facts. The "preliminary" statement preceeding both of them has been included in about 99% of the briefs I have ever seen, but is not provided for by rule. NY practice is flexible enough so that the statement of the procedural history can be part of the statement of facts or can follow the statement of facts. Recently I made the statement of facts a mere first subdivision of the statement of the case followed by subdivisions for brief descriptions of the pleadings and the summary judgment papers. This is the only time in about 100 briefs that I followed that exact format, but there have been occasions on which I have made the motion for summary judgment a subdivision of my statement of facts. NY is peculiar in that all denials of summary judgment are appealable of right.

Date sent: Mon, 15 Sep 97

When I write a brief I put the statement of the case first but, frankly, I pretty much copy the lower court docket, only in sentence form. Some of the judges I talked to indicated all the want to know is when and where and what I want. They also indicated that the statement of the case should end with "____ is now before the Court seeking (reversal) (remand) (etc.)" No matter how convoluted the procedural posture, if a brief is honed in, most of the motions and other crap that occurs in a case is not relevant to the issue. By emphsizing only the relevant portions of the record you have effectively begun your argument.

Date sent: Tue, 16 Sep 97

I know I'm probably coming in late, but I agree with you. I try to put in a preface or introduction that just states the important characteristics of the appealed order, then go through the background. I think by the time the judges have (hopefully) read the issues, they have a handle on the procedure anyway.

Date sent: Tue, 16 Sep 97

In typical New York practice (We have about sixty or seventy courts with some appellate jurisdiction and their own preferences - our five important appellate courts all have rules that are completely diferrent [no two of them even require exactly the same papers to be served and filed]) there is no introduction. The rules usually require a statement of questions presented before the statement of facts, but the judges seem to like a one paragraph preliminary statement before every thing else (all thoiugh this is not provided by rule). In about 23 years of writing briefs, I have never found that form was more important than intelligent presentation in deciding how much procedural history to put in the preliminary statement and how much to put at the end of the statement of facts. It is, of course, important to let the court know right away what you are up to. If, for example you are arguing something other than the typical reversible error of law case (e. g. gross abuse of discretion or [as permitted in NY, but I do not think elsewhere] error of fact) say so right away.

Date sent: Wed, 17 Sep 97

Never include irrelevant procedural history in your Statement of the Case. Not only will it bore the judge or clerk who reads it, it may confuse them as to the real purpose of your brief. For instance, no one in the appellate court cares how many times your discovery hearing was continued if you're appealing from a summary judgment.

Date sent: Thu, 18 Sep 97

The last thing you want is for a judge to read three or four pages thinking you want a new trial only to learn that you want a remand for judgment or vice versa.

Date sent: Thu, 18 Sep 97

Until it was brought up, I never really spent much time considering my statement of the case except to the extent I explained in my last e-mail. But, in Ohio at least, after the assignment of error and statement of the issues, it is the first thing the clerk reads. Which brings me to my question, I have spent more and more time creating a longer and more fact specific issue statements. In fact, I try to craft an issue statement so that the only logical response to the question is either "no" or "yes" depending on what I want. Does anyone else use issue statments in their briefs, and if so, do you use them as an introduction to your argument?

The above discussion was taken from the Appellate Law Discussion list and edited.

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