I was flipping through my copy of Aldisert this afternoon and, as often happens, I came across a gem: in your statement of facts, narrate the facts found, not the evidence presented. As the judge explained:
I repeat for emphasis that what counts are the facts found by the factfinder. When a jury determines the facts, the appellate court is required to assume that the jurors accepted the evidence presented by the verdict winner. Too often appellants attempt to argue their evidence unsuccessfully presented to the jury. I do not exaggerate to say that during every court sitting in which I have participated since 1968, there is at least one case where an attorney has done this. Successful appellate lawyers do not.
That is absolutely correct. Aldisert calls arguing rejected evidence “stealing the facts,” and it’s a huge tactical blunder–specially when the appellee is armed with a favorable standard of review.
When an appellant argues the evidence presented, rather than the facts found, he hands the appellee an opportunity to point out–or, more likely, to quote, revel in, and savor–the contrary evidence in the record. That is a direct attack on the appellant’s credibility. Worse, it immediately puts the appellate judge on the defensive, and gives her reason to read the rest of the appellant’s brief with a “what’s-this-guy-trying-pull?” skepticism.
But it’s not over yet. Having scored the easy credibility points, the appellee can note that the appellant is simply rearguing the facts, which were rejected below, rather than any legal error on the part of the trial court.
The appellee can argue, quite correctly, that the appellant’s position is based on a faulty reading of the facts; even if the appellant’s logic were sound, his premises are incorrect.
Only then, after landing two stinging shots without any thought or effort, need the appellee explain why the appellant’s legal reasoning fails. By then, it’s probably too late for the appellant.
So how does an appellant avoid “stealing the facts?” I like to keep in mind another Aldisertism: one of the reasons why briefs have a statement of facts is “to provide the appellate court with an objective account of what occurred before the twist of advocacy is added to the cold facts.” Your statement of facts is the foundation of your argument. It must be unshakable, and assiduously honest. After all, judges read opponents’ briefs and trial court opinions, too.
This does not necessarily mean that the fact statement should be neutral–we are advocates–but it ought to be impossible to dispute. Refocus or amplify, maybe, but not dispute.