11: Legal Memos - Facts Section

Step 1: Analyze the facts

Before drafting your Facts section, first gather together all of the facts relating to your client’s legal matter, from all possible sources (interview notes, documents, discovery, reports, etc.). Then, based on the legal standards established in your micro- and macro-synthesis of the legal authorities relating to the client’s questions, categorize each fact in terms of how it relates to each legal standard – is it legally significant, contextual, or irrelevant? Some facts may relate to multiple legal standards; not only that, but facts might be legally significant for one legal standard and contextual for another. Even if it seems repetitive, including the details will make it easier for you to write the Questions Presented section of your memo.

To illustrate, let’s use this brief fact scenario:  Suppose your client claims she suffered a severe neck injury in a car accident. Her new white Ford Excursion SUV was stopped at a red light. The defendant’s old blue Geo Metro was stopped behind the client’s car. The defendant admits he took his foot off the brake pedal and his Geo Metro, which has an automatic transmission, moved forward and collided with the client’s vehicle. The client brought in pictures of her rear bumper that showed scratches and a small amount of blue paint. Your legal research revealed that a negligence claim has four legal standards (or elements) – existence of a legal duty, a breach of that duty, compensable damages and a causal connection between the breach of duty and the damages. Here’s how you might analyze those facts:

Fact categorization – LS = Legally Significant; C = Contextual; I=Irrelevant

When we write the facts statement, we will include all of the legally significant facts and most, if not all, of the contextual facts. It wouldn’t necessarily be wrong to include the irrelevant facts (such as the age or color of the cars involved); keep in mind that later research may end up convincing us that what we thought was irrelevant really isn’t (for example, a car’s color could be important under certain conditions – it might be harder to see a white car in the middle of a snowstorm). Also, some supervising attorneys will want you to include all of the facts, no matter how trivial, so that they can make the judgment call about what is or is not relevant.

Step 2: Organize the facts

The order in which you present the facts in your Facts section definitely impacts the other portions of your legal memo. In most cases, you’ll receive facts over time in a piecemeal fashion and it may be disjointed in terms of how each fact that comes in is related to facts you obtained previously. You must account for and keep track of clarifications, explanations, corrections, and disputes in the facts. You want the order of presentation in your Facts section to flow well and to logically lead toward how you will analyze each legal standard that forms the basis of the client’s legal question(s).

There are basically three ways to organize facts: chronologically, by claims made, or by parties involved. Most of the time you’ll write the facts as a chronological story about what happened. For simple car accidents, breach of contract cases, criminal cases, or simple transactions, it makes sense to present the facts chronologically, telling the story from beginning to end. One variation of the chronological presentation that some attorneys prefer to use starts with the “culminating fact” (the collision, injury, aftermath of the crime, etc.) and then goes back to the beginning of the story.

In some legal matters, one person makes several claims against the same party, involving different legal standards but arising from the same set of facts. For example, someone buys a house and discovers that the basement leaks. The seller failed to disclose the leaks. There are several causes of action against the seller arising from the failure to disclose: negligent misrepresentation, fraudulent misrepresentation and strict liability misrepresentation. Each claim has different elements, so different facts are legally significant (and you would have categorized the facts under each claim, as demonstrated above). One way to organize the presentation of facts for this type of case would be to start with the seller listing the house for sale and the buyer attending the open house. From there, you would write about all of the non-disclosures and other factual circumstances that you categorized under the negligent misrepresentation claim; after that, those that you categorized under the fraudulent misrepresentation claim, and so on. If there are a lot of facts, you could even use a subtitle in your Facts section for each claim.

Other times, one person makes claims against several different parties involved in a complex transaction. For example, someone hires a general contractor to build a house. The general contractor hires subcontractors for framing, plumbing, electrical, etc. There are lots of problems with the house, so plaintiff sues the general contractor and all the subcontractors. Different facts relate to each party, and each party was working on the site at various times throughout the project. In that instance, it makes sense to start with facts related to the broad transaction (that is, to the contract with the general contractor) and write about everything relating to the claims against the general contractor. From there, you would choose a subcontractor (perhaps the first one to work on the house) and detail the facts relating to the claims against that subcontractor. All of the facts relating to the claims against each subcontractor would be detailed separately. Again, you could use subtitles in your Facts section for each party against whom the person is making claims.

Organize the facts section with separate headings (not numbers) for facts relating to each party being sued.

Step 3: Draft your Facts section

Now that you have a plan, it’s time to start drafting! Use your own words and take care to use neutral and objective language throughout. Remember, the purpose is to tell the whole factual story and not to persuade anyone about the credibility, weight, or impact of the facts. Some pitfalls to avoid:

☹ using unnecessarily “emotionally charged” language. For example, going back to the car accident described above, it would be unnecessarily “emotionally charged” to describe the accident as having occurred with “great force and violence” (this is a favorite phrase of some personal injury lawyers with whom I’ve worked).

☹ overuse of adjectives and adverbs. Similar to “emotionally charged” language, adjectives and adverbs can result in an overstatement or exaggeration of what really happened. For example, describing the car accident described above as “a horrific (or tragic) accident” or describing the defendant as “callous” because he took his foot off the brake pedal. One way to avoid this pitfall and the one above is to ask yourself, “Is my bias showing?”

☹ including inferences and assumptions drawn from the facts. They may be perfectly logical, but inferences and assumptions don’t belong in the statement of Facts. Inferences and assumptions are not facts – they are opinions or perceptions; moreover, inference and assumptions can be completely wrong, despite being logical. One way to avoid this pitfall is to look for documents or testimony to establish the existence (or non-existence) of each “fact” in each sentence you write. If you can’t find any, the “fact” is likely an inference or an assumption.

☹ including legal conclusions drawn from the facts. Avoiding this pitfall can be particularly tricky because you’ve likely formed an opinion about how the legal authorities you’ve synthesized will apply to the client’s facts and how you would answer the client’s legal questions. One way to avoid this pitfall is to keep the legal standards in front of you as you write (or revise) your Facts section and make sure the word(s)/phrase(s) in the legal standard don’t appear there. So, for the car accident case, we wouldn’t want to find words such as “negligent,” “breach of legal duty,” or “cause” in our Facts statement.

☹ over summarizing the facts. Remember, you want as much relevant factual information as possible. It’s better to include irrelevant facts that to exclude potentially legally significant facts. It’s also better to include details that seem trivial than to exclude potentially important details. One way to avoid this pitfall is to have someone who knows nothing about the client’s legal matter read your Facts statement and then describe to you what happened. If that’s not feasible, pull out your fact analysis and make sure every single fact you listed there is included in your Facts statement.

Here are some additional tips for writing your Facts section:

• Confirm that you have checked all possible sources of facts – make sure you leave no stone unturned. Of course, you will interview the client and any other witnesses having knowledge about the case. Don’t forget to review documents, reports, photos, videos, statistical data and other physical evidence that might relate to your case. Follow up on all information provided by witnesses. Sometimes seemingly irrelevant facts can lead to the discovery of relevant facts.
• For each source of fact, be mindful of the logical limits of the information that source can provide. Remember, people sometimes make assumptions that are logical, but incorrect. Ask yourself
  • What are the logical limits of the eyewitness’ ability to see, hear, or otherwise perceive the circumstances or events involved?
  • What are the logical limits of a person’s ability to know about facts or documents (for example, the person’s access to documents or other information, or the person’s area of expertise)
  • What are the logical limits of documentary evidence to which you are referring? Documents and reports are limited by all sorts of things, including the purpose for which they were created or the ability to include details. For example, weather condition reports provide information about weather conditions in a general area; that doesn’t mean the weather at the accident site was exactly the same as that described in the report (I’ve had the experience of watching pouring rain across the street from my house while my house stayed completely dry).
• Differentiate between uncontested and contested facts.  If there is a dispute as to how something happened or whether something is true, state that the fact is “asserted” or “claimed” by one of the parties (and identify that party). Other words that show facts might be unclear include “apparently,” “allegedly” and similar words.
• Note the source of each fact (a deposition, pleading, interrogatory answer, etc.) on a rough draft of the memo that you will keep. This will be helpful if the attorney is contemplating filing a motion, trial brief or appellate brief based on the issues discussed in your memo. Motion and appellate briefs require you to provide a citation to the official court record for each fact contained in the brief; keeping a draft of the memo that identifies the source of each fact means that you won’t have to re-create this information months or even years down the road.

Step 4: Review and revise your Facts section

Once you’ve got a good first draft of your Facts section, set it aside (if you can) before reviewing and revising it. Things to consider when revising:

• Proofread carefully for grammar, punctuation, spelling, capitalization, and other writing mechanics
• Check for accuracy, especially when writing about dates, times, numbers, weights, or measurements
• Make sure your Facts statement is internally consistent in terms of names (including acronyms and “short forms” of names) and verb tenses (past or present tense)
• Determine whether you should include the current procedural status of your client’s case. Some supervising attorneys want a description of the current status at the beginning or at the end of the Facts section. Has a complaint been filed? What discovery has taken place? Are we considering filing a motion? Including a detailed procedural status puts the rest of the memo in context. It can also provide a progressive history of the case, especially if several memos are written at different points in the case.