Effective statement of the facts; how to use the atmospheric trimmings.

• Jurisdiction: United States

Section 25. Effective statement of the facts; how to use the atmospheric trimmings.—Once the basic arrangement of the Statement of Facts has been blocked out, with proper topical introductions and with the facts arranged in logical order—and generally the chronological order is the most logical one—it is time to consider the next step, which is, succinctly, to incorporate the atmospheric trimmings.

Here the task is to present the facts, without the slightest sacrifice of accuracy, but yet in such a way as to squeeze from them the last drop of advantage to your case—and that is a task that in a very literal sense begins with the first sentence of your Statement of Facts and continues through the last one (in which you set forth the opinion or judgment below).

Examples of how to do it and of how not to do it will be considered later; here will be set forth some general admonitions that should be heeded.

(a) First and foremost, you must be accurate. You owe that duty to the court, and, equally, you owe that duty to your client. And, for the same reason, you must be candid. If the court finds that you are inaccurate, either by way of omission or of affirmative misstatement, it will lose faith in you, and your remaining assertions may well fail to persuade. See Section 44, below, for a discussion of the application, in this connection, of the maxim Falsus in uno, falsus in omnibus.

A Federal appellate judge recently had occasion to remark that "Skilled advocacy is not a substitute for operative facts though that art may supply emphasis and delicate nuances of evidence clearly established by the record."²⁷

That statement marks, about as well as it can be drawn in the abstract, the line between the proper use of atmospheric trimmings and the improper use of imperceptible slanting that results in intentional misstatement. It is just as much the duty of the advocate to present his acts favorably as it is his duty to present the law forcefully. It is not in any sense "cute" to wring every advantageous fact out of your record—just so long as the full Statement of Facts is fair, honest, and accurate. I emphasize both aspects because—as a matter of actual fact—quite a number of appellate judges seem to feel that any advice to stress the favorable facts is tantamount to urging deception as an aid to winning on appeal. Any such reaction is the result either of a failure to understand the office of advocacy, or of a failure to analyze one's own thinking—or of both.

The...