Examples of effective and ineffective Statements of Facts.

• Jurisdiction: United States

Section 26. Examples of effective and ineffective Statements of Facts.—It remains to illustrate the foregoing generalizations with specific and concrete examples. Full Statements of Facts, from briefs filed in a variety of situations, were set out in Chapters 10-13 of the former version of this work, while those appearing in Chapter XII (below, pp. 397-421) illustrate the problem discussed in the next section. The examples in the present section are shorter excerpts selected to illustrate particular techniques.

(a) Courts dislike to referee ideological contests, or to be asked to umpire disputes that exude even the faintest suggestion of mutual zeal to get a question decided,²⁹ or to assist the litigant who goes to law to vindicate a principle rather than a substantial legal right, or to take advantage of a situation at the expense of the public. The problem in such cases is to make the court aware of what is going on—which obviously cannot be done by calling one's opponent a strike-suitor or his cause a cooked-up case. Usually, in such a situation, the facts of record speak for themselves, and all the advocate need normally do is to set them out, without comment.

An example that comes to mind is that of a bitterly contested proceeding involving a tract of public land that was of no possible value except as a source of rock for a nearby breakwater. If the claimant had succeeded in obtaining it, the neighboring municipality would of necessity have had to pay handsomely for the stone it wanted. In order to convey the desired impression, the brief for the public official commenced its Statement of Facts as follows:

Whaler Island is a small rocky island in the harbor of Crescent City, California, some 3.65 acres in extent (R. 17-18) . It is without value for agricultural purposes, is not adapted to ordinary and private occupation, and is of utility only in connection with the improvement and development of the harbor (R. 31).

This island is the land for which the appellant Lyders seeks a patent (Bill, par. V, XVIII; R. 4, 15-16).³⁰

In that case, the matter was dropped with its mere statement, and was not further pursued. There was nothing to argue about, because the circumstances in question were atmospheric only, and legally irrelevant.

In other cases, however, facts going to the infirmity of a party may become relevant, in which event they are properly taken up in subsequent argument. The problem is to distinguish between the Statement of Facts and the Argument, to keep the first absolutely straightforward, and to put the editorializing and characterization where they belong, namely, in the portion of the brief that is headed "Argument."

Examples of the second category arise in situations where review by a higher court is discretionary,³¹ and where accordingly the appellate court must be convinced, not so much that the decision below is correct or incorrect, but rather that the question is important and is one that deserves or requires review. In such a situation any fact tending to show that a litigant is more interested in obtaining an advisory opinion than in vindicating his legal rights becomes not only relevant but important and, it may be, controlling.

A case arising out of a World War II removal order, but coming up sufficiently long after V-J Day to be of essentially academic interest, illustrates the point. The plaintiff had been individually ordered excluded from the sensitive West Coast area after having been convicted of conspiracy to commit sedition.³² He sued the Commanding General for damages, a judgment in his favor was reversed on appeal, and he petitioned for a writ of certiorari to review the result. The Statement of Facts in the Commanding General's brief opposing the petition therefore pointed out:

The complaint asked damages in the sum of $3500, but subsequently petitioner filed a waiver of all damages in excess of $100 (R. 83, 291, 296, 303).

In the portion of the General's brief headed "Argument," he adverted to this fact and argued that

* * * The circumstance that, after bringing suit for $3500 (R. 11), petitioner subsequently stipulated that he would waive all damages over $100 (R. 83, 291, 296), strongly suggests that the object of this proceeding for damages was not so much redress for injuries sustained as the obtaining of abstract pronouncements from the courts as to respondent's authority. This he cannot have * * *.

Certiorari was denied,³³ and the factor just mentioned may well have contributed to that result.

(b) It is a commonplace that a very bad man may have a very good case. But judges are human, they want to do substantial justice, and therefore in close cases they are, more or less unconsciously (depending on the individual judge), bound to be influenced by the character of the litigant, particularly when he appears before them as a crusader.

Without doubt, the Jehovah's Witnesses in the 1940's spearheaded much civil rights litigation, and a good deal of constitutional law was written—and rewritten—around their activities. It is not necessary to collect at this point either the cases or the commentaries thereon or even to set out at length the situation out of...