We’ve recently discussed the shift from objective to persuasive writing, focusing on drafting persuasive legal arguments. Your approach to the facts will change from objective to persuasive as well. How can facts, which are seemingly objective, be presented persuasively?
Ethical Considerations
Presenting facts persuasively is not tantamount to fabricating positive facts, ignoring negative facts, or taking quotes out of context. Ethical and professional standards forbid such tactics. False statements of fact are explicitly forbidden by Federal Rules of Civil Procedure 11(b)(3) and (4) and Model Rule of Professional Conduct 3.3(a)(1).
When you write a brief, every fact must be supported by a citation to the record, which may include deposition transcripts and documentary evidence. Judges (or their clerks) – and opposing counsel — can and will check that your record citations support the stated facts.
But there is still room for persuasion. The fundamental approach is to emphasize the positive and deemphasize the negative. Several techniques can help you do this.
To illustrate, let’s use this example from a real case:
A 16-year-old high school football player was seriously injured during a pick-up game on a playing field at a local college. The plaintiff sued the college, alleging that his injuries were due to defects in the artificial turf and negligent supervision. The defendant contended that the plaintiff assumed the risk of playing tackle football without protective gear, and that his injuries were caused by a hit from another player. The defendant moved for summary judgment.
Use Facts to Raise Favorable Inferences
It’s crucial that your facts section contains only facts – no arguments or conclusions. If you use facts effectively, your reader will draw inferences that support your arguments.
In this example, the defense wanted the judge to infer that plaintiff assumed the risk of injury. To do this, the defense included facts to establish the plaintiff’s knowledge of football, especially the need for protective gear and the risk of injury. These facts included plaintiff’s experience on his high school team and as an NFL fan. The defense also referred to plaintiff’s academic record; portraying him as a bright student further supported the idea that he was aware of the risk. Nowhere in the facts did defense counsel refer to “assumption or risk” or state that plaintiff “should have known better”; those would be conclusions.
Sometimes the same facts can cut both ways. While the defense used the plaintiff’s academic record to bolster its assumption of risk argument, plaintiff’s counsel used it to show the devastating impact of plaintiff’s physical injuries, which were so severe that he was unable to attend college despite his qualifications.
Organize Effectively
The default organization of facts is chronological. In your memo assignments, you probably organized the facts chronologically without considering other options. Your reader will best remember the beginning and ending of your facts section, so you might choose an alternative organization that allows you to place compelling facts at the beginning and end, with negative or harmful facts in the middle, where they will be deemphasized. You can use headings to clarify your organization, especially if it’s not chronological.
In our example, the plaintiff chose a chronological approach. This allowed a strong start establishing the healthy, successful pre-injury plaintiff and a strong ending emphasizing his injuries. The defense used a different approach, starting with the plaintiff’s knowledge of football, then describing the disastrous football game, and ending with the college’s policies regarding use of the field – an opportunity to present the defendant as a positive force in the neighborhood, not the callous institution portrayed by plaintiff.
Choose Words Wisely
Take control of your client’s story by choosing words with favorable connotations, keeping in mind that the facts must be supported by the record. How would you describe the plaintiff in our example? Was he a child, a teenager, a minor, a young adult? An honor student, a football player, a varsity athlete? He was all of these things. The plaintiff’s attorney described him as a “child,” while the defense described him as an “honor student and varsity football player.” The connotations are very different, and each supports a theory of the case. The “child” lacks judgment and comprehension of risks; the “honor student and varsity football player” knew or should have known he was engaging in dangerous behavior.
Use Details . . . Or Not
Emphasize positive facts by providing lots of detail about them; deemphasize negative facts by limiting detail. In our example, the defendant referred to the “incident” that caused plaintiff’s “injuries.” Plaintiff’s attorneys, however, described in depth plaintiff’s spinal cord injury and quadriplegia, with ample support from the record.
If you follow these tips, as well as ethical rules and record citation requirements, you can craft a persuasive statement of facts.
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Other helpful Legal Writing posts:
- From Objective to Persuasive Writing, Part One: The Law
- 5 Tips for a Great Legal Writing Assignment
- Dos and Don’ts for Using Sample Documents in Legal Writing
- Podcast Episode 11: Legal Writing 101
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