Effective statement of the facts; why necessary.

• Jurisdiction: United States

Section 23. Effective statement of the facts; why necessary.—In many respects, the Statement of Facts is the most important part of the brief; hence the priority given it in the present discussion. The circumstances that numerous other matters may be required by rule of court to precede the Statement of Facts in the printed brief does not in any sense warrant postponing its consideration.

The greatest mistake any lawyer can make, after he has written a fine brief on the law, is to toss in a dry statement of facts and send the thing off to the printer. When I first came to the bar (now more years ago than I like to recall), my chief—Eugene A. Kingman, Esq., of the Rhode Island Bar—used to insist that that was the common error made by the young men in the office—and everything I have seen since then has served only to confirm the truth of his admonition. I owe it to him to acknowledge that I have profited by his wisdom, and learned the great lesson that, in writing briefs, the facts should first be studied, mastered, sweated over—and written out into an acceptable draft before the rest of the brief is even touched.

For facts are basic raw materials of the legal process, as all great lawyers, from ancient worthies down to the great judges of modern times, have recognized. Ex facto jus oritur—the law arises out of the fact—is a well-worn maxim of old, to the point of being hackneyed. But it expresses a fundamental truth that, within the memory of most of us, Mr. Justice Brandeis regularly put into practice. As Professor Freund, one of his former law clerks, has written:

His belief in the primacy of facts was apparent even in the process of preparing an opinion. However much he encouraged his law clerks to present the results of their legal research in a form...