During my years in private practice, I thought I understood the key elements of effective factum-writing. Now, with the benefit of 10 years experience as an appellate judge, I realize that I would change, and reorder, my priorities in preparing a factum for a case on appeal.
The reflections that follow do not break new ground, nor are they particularly profound. Nonetheless, with the hope that they will serve as a useful reminder for experienced counsel and as a workable checklist for new lawyers, I offer the following observations.
Importance of the factum
To emphasize that the written factum is the cornerstone of argument in a case on appeal is to state the obvious. The factum is where the opportunity to persuade begins. It is an opportunity that should not be squandered.
While in practice, I frequently assigned the task of writing the first draft of an appellate factum to an associate or colleague assisting on the case. To my way of thinking, this was effective training for less experienced lawyers. I rationalized that I would always have the opportunity to revise the factum before it was delivered. But the demands of private practice being what they are, the time for final vetting often proved to be all too short. On occasion, I confess, I went with the draft prepared by a junior lawyer, making only minor revisions, content with the optimistic belief that I could recast the case during oral argument, if necessary. I would not follow this practice today.
The volume of cases heard by the Court of Appeal for Ontario is considerable. It is not unusual for a panel to hear, and therefore prepare for, as many as 12 to 15 appeals each week. That translates to a minimum of 24 to 30 factums, together with associated materials, that are read by the presiding judges in advance of oral argument on a weekly basis. Multiply that by two or three sitting weeks each month and you are up to somewhere between 48 and 80 factums every month. That’s a lot of factum reading! It means we yearn for good factums and appreciate them when we find them. It also means that we dislike bad ones.
Of course, I always knew that the judges who would hear my client’s case would also be dealing with other appeals on the same day or during the same week. However, not surprisingly, my focus was on my client’s case. Somehow, I believed it was the only one that would attract the judges’ close scrutiny. I forgot that I would be competing with many others and the skills of many other advocates in writing factums.
The simple fact is that appellate judges form a preliminary view of the merits of the case based on the reasons of the judge of first instance and the factums of appellate counsel. It has been said that a good factum can win a case, although a bad factum won’t necessarily lose one. This is true; however, the factum is half the battle. Win the judges’ tentative agreement with your written arguments, and you have a significant advantage before oral argument even begins. It will be for the other side to bring the judges back to their position — unbeknownst to opposing counsel, they are already tentatively starting on your side. In other words, opposing counsel have to climb uphill. You just have to close the deal.
In light of these realities, how should you approach the task of writing your factum on appeal? What should you say and how should you say it? I am tempted to indicate, as did the king in Lewis Carroll’s immortal Alice’s Adventures in Wonderland, “Begin at the beginning and go on till you come to the end: then stop.” But there is quite a bit more to the art of written advocacy than that.
Know your audience
First and foremost, know your audience. You are no longer at the trial court level. You are no longer attempting to establish the facts. You are no longer dealing with a court with inherent jurisdiction. You are at the appellate level. You must know the powers and jurisdictional limitations of the court. You must also know the applicable standards of review. On numerous occasions, I have read factums where counsel have tried to re-establish facts rejected at trial, or factums where counsel have asked for relief that the court could not grant.
‘Own’ the factum
First, write the factum yourself if you can. If this isn’t possible, reserve enough time for its thorough review and revision before it is delivered. In other words, make sure it has your ‘fingerprints’ all over it. You will be arguing the case. It is quickly apparent to judges if appellate counsel are unfamiliar or uncomfortable with their factum. After all, there is only so much transformation of the case during oral argument that is credible. If the case is framed one way in the factum, and entirely recast during oral argument, you will annoy the judges and erode their confidence in you and in your client’s position.
Shape the case and outcome: the overview
You must take the time to focus on how you want to formulate the issues and how best to sequence your arguments. Framing the issues is key — the characterization of the issues can dictate the outcome of the case. If framed correctly, the judges may adopt your formulation of what the case is all about — a significant advantage. Know where you are going in your factum and think about how best to get there. As Carroll put it, “If you don’t know where you are going, any road will take you there.”
This focus on framing the issues has consequences. It means that your description of the facts should be shaped to ‘set up’ the issues. Only those facts relevant to the issues need be mentioned or developed. Too often in a factum, counsel recite the facts or quote the evidence at great length, when much of what they cite is irrelevant, or only tangentially relevant, to the issues. Identifying the critical issues first, and framing them to your advantage, allows you to winnow the facts set out in your factum to only those that are essential to the main issues.
Much has been written about the importance of the ‘overview’ section of your factum. Some counsel don’t write one at all, which is, in my view, a tactical error.
The overview section is your first opportunity to inform the reader — your unidentified judges — what is in issue on the appeal. It is your chance to characterize the nature of the case and the issue(s) for determination as you see them. Spend time writing your overview — it’s worth it. Inform the reader of the nature, date, and author of the decision under appeal. Then identify the issues and describe the positions of the parties on the issues. Then conclude, briefly, with why your client’s position should be adopted. In other words, start to persuade — from the outset.
A factum should not be a mystery. Identify the critical issues early on; don’t leave the judges guessing until page 15 to learn what you say the case is all about. Think of it this way: what is this dispute really all about? What are the real issues? Then just tell the reader.
As the late justice Marvin Catzman, my friend and former colleague, once said in one of his many wonderful articles about advocacy, many lawyers put forward one really good issue or argument, several “so-so” arguments and “two or three dogs.” This is bad advocacy. It is ineffective and unpersuasive. Not many cases involve more than two or three live — and dispositive — issues. Take the time to sort the wheat from the chaff. And then devote your energies and advocacy to the issues that count.
What comes next? Well, tune in next week for the second part of Justice Cronk’s guide to appellate factum writing.
Justice Eleanore A. Cronk is a judge at the Court of Appeal for Ontario.