Appeals focus on legal errors. They are not a place to attempt to retry the facts. But that does not dictate that counsel ignore the importance of the facts in their briefs. Our common law legal system is fact driven. A difference in the facts may empower the advocate to distinguish the client’s case from what appears to be a determinative adverse precedent.
The facts should neither be something counsel rushes through to write the argument section of the brief, nor an afterthought. The brief’s statement of the facts stands as an integral — and often crucial — part of the appellate process. Just as well written facts may make the case, poorly written or misleading factual statements may condemn the brief to defeat and discredit its author. This Article offers suggestions on effectively conveying the facts in an appellate brief. The same principles should apply in a trial court brief.