12 Tips for Writing Better Fact Sections in Legal Memos and Briefs

Oct 19 / Joe Regalia
It is quiet and dark. The theater is hushed. James Bond skirts along the edge of a building as his enemy takes aim. Here in the audience, heart rates increase and palms sweat. I know this to be true because instead of enjoying the movie myself, I am measuring the brain activity of a dozen viewers. For me, excitement has a different source: I am watching a [] neural ballet in which a story line changes the activity of people’s brains. 
That's from Paul Zak, founding Director of the Center for Neuroeconomics Studies. Recently, scientists strapped brain-scanning and other sensors to a group of test subjects and had them watch a Bond movie. The researchers wanted to see how people reacted physically and neurologically to a good story.
"When James Bond found himself in stressful situations–like hanging from a cliff or fighting a bad guy–the audience’s pulses raced. They sweated. Their attention focused." In other words, the subjects connected with the hero on a physiological level, experiencing what Bond was experiencing. And something else: the participant's brains synthesized a neurochemical called oxytocin.

Oxytocin's influential power on our minds is well-documented. And stories trigger it.

Take another study showing that when we read a story, the neural activity in our brain increases fivefold. Neuroscientists have a saying: "Neurons that fire together, wire together." This increased activity, no doubt, makes it much more likely that readers will remember a story over some other random information.

Research shows that the mere act of reading a story changes how we think. In a 2011 study, participants read stories with strangers. The results? Storytelling, the researchers concluded, “fostered empathy, compassion, [and] tolerance.” Reading a cohesive story (of any kind) affects us. It makes information more palatable and more memorable. This is all piled on top of the long-standing cognitive science research showing that nearly all of our thinking is done by constructing story-like schemas and categories in our minds.

In short: research proves that storytelling engages readers, it burns information into their memories, and it forges the sort of close bonds that you need to persuade them. If anything, these powers are most important for lawyers. We legal writers are desperate to engage our readers—and to get them to care—amid the constant legal noise. Storytelling can cut through that noise and touch our readers on deep levels.

Legal storytelling is a field and art to itself, but I thought I would offer some core storytelling tools that you can easily incorporate into your legal writing.

1. Start with a movie-trailer paragraph.

Try taking a paragraph or two at the outset of your factual story to spool up a preview of the best scenes. If your fact section is the movie then this initial section is your movie trailer. You will not only excite and engage your readers, but you'll lay out the basic storyline so they can better sort the details as they go (an important cognitive science tool).

The two tricks here are to (1) roadmap the basic storyline and theme ("this is a corporate bullying case") and to play a highlight reel of some of your best material to prime readers and get their emotions in the right place. I've seen good movie trailers take up a few paragraphs or a few sentences. Take this one from a recent SCOTUS case–it doesn't get more simple or persuasive than this:
STATEMENT OF THE CASE

This case presents the story of a congressionally chartered entity that was born as a federal agency and converted to a private entity—and the jurisdictional provision that adapted to that transition. 
Justice Kagan is a fan of the movie trailer. Here she sets up the story in the Sherman case last term: 
STATEMENT 

A. The Town Prevents Sherman From Developing His Land

In 2000, Steven Sherman applied to the Town of Chester for approval to subdivide a nearly 400-acre property that he purchased for $2.7 million ("MareBrook"). See Sherman v. Town of Chester, 752 F.3d 554, 557 (2d Cir. 2014). "That application marked the beginning of his journey through the Town's ever-changing labyrinth of red tape." Id.
And here's another one from a federal motion for summary judgment: 
The thrust of the complaint is that plaintiff has worked at the defendant’s store for several years and repeatedly complained about sexual harassment. For example, he complained that his supervisor allegedly made comments about his "great stature." Eventually, the defendant acted, but by then, plaintiff alleged he had already been harassed so much that he quit.
Here's an example of a lawyer also adding some helpful roadmap to his trailer: 
Three periods in plaintiff’s employment are relevant here. First, plaintiff offers allegations about when he was interviewed and how the defendant made promises to him then, like that he would be a foreman within six months. Second, plaintiff alleges that over the next six months, his job turned out to be a "glorified secretary…"

2. Uncover your familiar plot and highlight it.

We all know the good storylines: the underdog who defeats the bully, rags to riches, the do-gooder who is underestimated by everyone in town. We are hardwired to be moved by these storylines. The good news is that you can construct an emotional storyline out of just about any situation, if you look hard enough. Once you've distilled down your basic plot so that you can relate it in a sentence or two—highlight it at the outset of your story and throughout your brief.

Supreme Court high-flyer (and one of my favorite legal writers) Deepak Gupta gets the value of building a simple and emotional storyline at the outset. With these couple paragraphs, Gupta injects his factual theme, storyline, and the punchiest snippets of his factual story. In short, the big bad credit card companies are pulling the wool over innocent consumers' eyes—to the tune of billions:
STATEMENT

The credit-card swipe fees paid by Americans are "among the highest in the world." The typical fee is between 2% and 3% of the purchase amount, while fees are even higher in some cases. Levitin, Priceless? The Economic Costs of Credit Card Merchant Restraints, 55 UCLA L. Rev. 1321, 1330, 1355 (2008). These fees add up. By processing over two trillion dollars in transactions, credit-card issuers receive over $50 billion in swipe fee annually. 156 Cong. Rec. S4839 (June 10, 2010).

The reason swipe fees are so high is that they have been kept hidden from consumers—the people who decide which payment method to use and thus determine whether a fee is incurred. "What most consumers do not know is that their decision to pay by credit card involves merchant fees, retail price increases, a nontrivial transfer of income from cash to card payers, and consequently a transfer from low-income to high-income consumers." Schuh, et al., Fed Reserve Bank of Boston, Who Gains and Who Loses from Credit Card Payments? (2010).
Here's another example. This time, it's a story of vulture debt buyers looking to prey on the weak: 
Debt buyers generally "rely on overburdened 'small claims courts,' where the state court formal rules of evidence typically do not apply." Peter A. Holland The One Hundred Billion Dollar Problem in Small Claims Court: Robo-Signing and Lack of Proof in Debt Buyer Cases, 6 J. Bus & Tech. L. 259, 261 (2011) ("Debt buyers shy away from large-value cases, which would require formal proof that complies with the forum state's rules of evidence."). They often prevail on even meritless claims because debtors default.

3. Deftly use emotional facts.

Legal readers hate reading facts that are obviously not relevant to the legal questions they are wrangling with. But if you insert those same facts into a cohesive story—your readers might not mind. For example, Justice Kagan mentions in this snippet below how much the plaintiff spent on fees, even though this fact really had nothing to do with the legal questions presented to the court. But because this fact was weaved into the story about the background that was relevant—you'd never know: 
After a decade of the Town's obstructionism, Sherman had spent more than $5.5 million. See Sherman, 752 F.3d at 557. And there was still "no end in sight." Id. Along the way, Sherman turned to Laroe. Laroe and Sherman signed two agreements regarding MareBrook, in 2003 and 2013. Pet. App. 3a-4a. The combined effect of the two agreements was that Laroe purchased MareBrook from Sherman for $2.5 million, subject to a provision requiring Laroe to transfer some lots back to Sherman depending on the number of lots the Town ultimately approved. See id.

4. Cut details that don’t matter.

We legal writers are often too specific about things that don’t matter. The problem is that when you give your readers a bunch of specific details without purpose, they get confused. They try to remember everything, not knowing what they'll need for the legal analysis later.

So cut dates, amounts, names, and any other details that won't help you win on the merits. Look how this federal district judge avoids inundating the reader with dates, page numbers, and needless details that other lawyers and judges love to squeeze in:
Late last year attorney Denton Jackson filed a chapter 13 bankruptcy case [] for debtor Sarah O’Neill. Shortly after filing the case, Jackson filed a form fee application, Form No. 23. In the portion of the application entitled "Use of Model Retention Agreement," Jackson checked the box indicating: "The attorney and the debtor(s) have entered into the Court’s Model Retention Agreement." Some months later, chapter 13 trustee Thomas Lanner objected to Jackson’s application because the [Model Retention Agreement] between Jackson and the debtor . . . attached an "addendum" that prescribed fees in addition to the flat fee to which Jackson was entitled.

5. Tell a complete, cohesive story.

Make sure to tell a complete story—beginning, middle, and end—for any event that matters. Readers get skeptical when there are obvious plot holes. So answer natural narrative questions readers will likely have. Consider telling the story in a familiar arc:

setting > characters > complication/conflict > resolution (how they got to court)

This is a familiar and easy to understand format for readers (as a preview for later—you can use this same structure when telling stories about the rules, too).

Some other story elements to keep in mind:

  • Consider whose perspective might be the best to follow as you deliver the facts. The defendant's? The plaintiff's? Some third party's?

  • Focus on people or entities when possible. Frame the story as actions they took leading to the issues or dispute.


  • Provide your reader with helpful context to set up those important factual events. How did the plaintiff and defendant come to meet? Why were they where they were that night? You don’t want to lose your reader in irrelevant details, but if some factual events are critical, it will be much easier for your reader if you set the scene first.

Here's some nice scene-setting about why there are so few debt-buying firms, which sets up the critical factual events in the case: 
Debt buyers like petitioner represent "[t]he most significant change in the debt collection business in recent years." Fed. Trade Comm'n Collecting Consumer Debts: The Challenges of Change 13 (Federal Trade Commission 2010) (FTC 2010 Report). Although hundreds of entities operate in this area, the industry remains substantially concentrated, with just nine firms—including petitioner's parent company Encore Capital Group ("Encore")—responsible for over 76% of all debt purchases in 2008.
Here's a great example of a lawyer telling the whole story and paying attention to familiar story elements: 
Congress Creates Fannie Mae As A Government-Owned Entity The Could Sue And Be Sued In Federal Court

The story begins with the National Housing Act of 1934, a body of New Deal legislation enacted to buoy the nation's recovery from the housing crisis bought on by the Great Depression. Pub. L. No. 73-479, ch. 847, 48 Stat. 1246. The Act authorized a federal agency to create "national mortgage associations" to purchase and resell mortgage loans in the secondary mortgage market, thereby boosting lender liquidity and increasing the availability of low-cost mortgages to homebuyers. See 48 Stat. at 1252-55; Richard W. Bartke, Fannie Mae and the Secondary Mortgage Market, 66 N.W.L Rev. 1, 16-17 (1971).

Thus was born the Federal National Mortgage Association—aka Fannie Mae. Fannie began life as a national association with capital stock owned by the government. See HUD, Background and History of the Federal National Mortgage Association 7-9, A-4. (1966) [hereinafter Fannie Background and History]. Fannie's charter conferred a laundry list of standard corporate powers. One was the capacity "to sue and be sued, complain and defend, in any court of law or equity, State or Federal." 48 Stat. at 1253; see Act to Amend the Servicemen's Readjustment Act of 1944, Pub. L No. 80-864, ch. 784, 62 Stat 1206, 1208 (1948).
Here's another cohesive story. Notice how the lawyer keeps the facts in the perspective of the entities, not abstracts. Note also the editorials about what the entities were thinking at the time:
Defendant Oztark co. launched it’s company last year to help individuals who want to charter a private plane. It filled out its corporate paperwork with the state of Delaware, but it forgot to send in a check to cover the corporate registration fee. Delaware, in turn, sent its request for payments to the wrong address—so Oztark never realized it’s mistake. Oztark then started providing services, not realizing that it was effectively not a legal corporation . . .

Here's an example of some scene setting that lays out how different parties relate to each other. Is it all legally relevant? Probably not. But it sure helps keep the story straight:
B. Procedural History...

Respondents comprise three separate groups of plaintiffs. The Mackmin respondents are individuals who purport to represent a putative class of consumers who paid access fees when they conducted foreign ATM transactions at bank-operated ATMs. Osborn Pet. App 56a (Mackmin Compl. ¶ 8). The Stoumbos respondent is an individual who purports to represent a putative class of consumers who paid access fees at ATMs not owned or operated by a bank. Stoumbos Pet. App. 57a, 71a-72a (Stoumbos Compl. ¶¶ 18, 56). And the NAC respondents are a trade association of ISOs and several individual ISOs, which purport to represent a putative class of all nonbank operators of ATMs that access the Visa and MasterCard networks. Id. at 113a-117a (NAC Compl. ¶¶ 10-25). Visa and MasterCard are defendants in all three suits, while Bank of America, Chase, and Wells Fargo are defendants in Mackmin only.

6. Share specific details that make a point.

Use choice details to lead your readers to the emotions and images you want, don't just tell them what matters.

So instead of telling your reader that "plaintiff was severely and permanently injured" share the specific details: "Plaintiff broke both hips." 

But choose specific details with care. Juicy ones will build imagery in your reader’s mind, making the story come to life. But if you choose the wrong details you might lose control.

7. Learn how to emphasize the good facts.

Emphasize the best facts by describing them with the best style. Imagery-laden, vibrant, and pithy writing is memorable. And using this sort of writing when talking about the good facts will make them stick.

You can emphasize key facts by placing them in places of emphasis like the beginning and endings of paragraphs, the beginning or end of sections, and the ending of sentences. You can also emphasize these facts by repeating them subtly, say, in your introduction, in your fact headings, in your movie-trailer section, and in your conclusions.

Another important way to emphasize key facts is to tell a more detailed story about them. The more details and time you spend setting up a factual event, the more it will be emphasized for your reader. Justice Kagan gets it here, as she spends two paragraphs revealing every detail leading up to the critical event of the banner being unfurled:
Respondent Joseph Frederick, a senior, was late to school that day. When he arrived, he joined his friends (all but one of whom were students) across the street from the school to watch the event. Not all the students waited patiently. Some became rambunctious, throwing plastic cola bottles and snowballs and scuffling with their classmates.

Then came the incident we are concerned with here. As the torchbearers and camera crews passed by, Frederick and his friends unfurled a 14–foot banner bearing the phrase: "BONG HiTS 4 JESUS." The large banner was easily readable by the students on the other side of the street.

Morse v. Frederick, 551 U.S. 393 (modified)

8. Use the first sentence of fact paragraphs to frame and prime. 

First sentences are powerful. Use the first sentences of your fact paragraphs to set up the persuasive pitch for all the facts that come after. Gupta does just that here: 
A credit-card "surcharge" and a cash "discount" are just "different frames for presenting the same price information–a price difference between two things." Levitin, Priceless, 55 UCLA L. Rev. at 1351. They are equal in every way except one: the label that the merchant uses to communicate that difference. 
And again here:
The ability to accurately price these debts based on age and timeliness is critical to a debt buyer's success. For example, Encore touts its "information advantage" and proprietary valuation models as two keys to its competitive advantage. Encore 10-K 3 . To that end, Encore claims to "obtain detailed information regarding the portfolio's accounts," and it "continually monitor[s] applicable changes to laws governing statutes of limitations." Id. at 5, 7. Encore is not unique—the FTC concluded "that debt buyers usually are likely to know or be able to determine whether the debts on which they are collecting are beyond the statute of limitations." FTC 2013 Report at 49; see also id. at 49 & n.204

9. Use your own voice and narration whenever possible. 

Any good storyteller will tell you that half of this art is in the voice: the power, the pauses, the pitch. For writers, this is tricky, because you must craft a "written voice." One of the big pitfalls here is to let fact quotes drown out your own narration. Check out how Gupta keeps quotes to a minimum while maintaining his own narrative tone throughout: 
In the late 1970s, banks and other financial institutions realized that they could "increase convenience to their customers" and "spread the costs of the machines" by creating networks of shared ATMs. Osborn Pet. App. 73a (Mackmin Compl. ¶ 70). These early networks were mostly joint ventures composed of regional banks. Id. Among them were the business associations that eventually became Visa's Plus and MasterCards' Cirrus networks, as well as some of their competitors, including NYCE, Accel, and CO-OP. See id. (Mackmin Compl. ¶ 71); Fed. Reserve Bank of Kan. City, A Guide to the ATM and Debit Card Industry 23-25 (2003) (ATM Guide).

10. Defang unhelpful facts (but don’t ignore them).

Defang unhelpful facts by surrounding them with helpful facts (the "halo"), by placing them in the middle of paragraphs, by not repeating them, and by sharing less detail or spending less time exploring their nuances.

But top lawyers will all agree that you should not ignore the bad facts that the other side is sure to raise. That just makes them that more powerful in the other side's hands. But here is an example of an attorney deftly putting bad facts into context. Instead of saying: "Defendant admits he punched the plaintiff in the face," the lawyer says:
Defendant is a nurse. He has never done anything violent. He was being beaten from three sides and—to save his own life—flailed and made contact with one of the assailants in the face. There were no injuries.

11. Use headings to separate the story's different scenes.

This may be the most helpful fact tool: separate different factual events with headings so that your readers can keep track. Good headings also allow you to help your reader understand what matters from each section.

For example, this lawyer plucks out the key facts about how long it took to file a motion:
A. The plaintiff waited to file the motion until three months after receiving documents.
Here's another Gupta example of headings that preview key facts and help readers keep track of all the different parts of a single, cohesive story:

Statement……………….........……………………..………..5

I. Why labels matter: the communicative difference between "surcharges" and "discounts" …….....................................................6

II. How we got here: the credit-card industry's efforts to prevent merchants
from 
communicating the cost of credit .…….8

     A. The industry's early ban on dual

          pricing and Congress's protection

          of cash discounts …………………………........8

     B. The industry shifts its strategy to

          labels …………………………………………….......…9

     C. The industry's labeling strategy

          achieves short-lived success at

          the federal level ……………………….....….…..9

     D. The credit-card industry lobbies

          states to enact no-surcharge laws

          and adopts contractual no-surcharge            rules …………………...............................……..14

     E. Enforcement of New York's law ……...17

     F. Enforcement in other states……………..19

     G. The Durbin Amendment and the

          recent political controversy over

          swipe fees…………………………………...……..19

12. Telling the story behind the rule.

One of the most powerful stories is a type you might not think about: Rule stories.

Really, every rule is a story. Whether it be a statute, a common law principle, or the reasoning of a court case. Some situation or circumstance gave birth to the rule. The rule grew over time—changed, expanded. Perhaps it matured into a more flexible version of itself, benefiting from the wisdom of experience. Or maybe it became strict and unyielding after too many litigants took advantage of it.

There is a lot of magic to explore here. For one, when you have a critical rule interpretation that may make or break your brief—telling the rule's life story can be the most memorable, engaging, and persuasive tool in your belt. Rule stories just beg to be read.

Most legal writers would introduce a rule like this:
The Free Exercise Clause does not exempt religious persons from laws of general applicability. Employment Division v. Smith, 494 U.S. 872 (1990). 
Look how different it is when the rule is explained in story-form, hereby Justice Gorsuch:
Our story starts with Smith. In Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), the Supreme Court held that the Constitution's Free Exercise Clause does not exempt religious persons from the dictates of neutral laws of general applicability. The devout must obey the law even if doing so violates every article of their faith. When Smith was handed down, some worried that it upset existing free exercise doctrine dating back to Sherbert v. Verner...
Once your reader absorbs your rule's story, it will be hard for them to shake. The other side's surface interpretation of the rule will ring hollow.  

Another power of the rule story is that it gives you flexibility.
  
Root around long enough in any rule's past, and you'll find some skeletons. Perhaps a shoddy case that caused a twist in the law that never should have been there. Or some assumptions or factual circumstances that suggest an entirely different purpose animated the rule than what you might expect. You can take more liberty when interpreting rules as a storyteller.

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