Matters that must be avoided in a Statement of Facts.

• Jurisdiction: United States

Section 28. Matters that must be avoided in a Statement of Facts.—Below, in Section 83, under the heading of "Things You Cannot Afford to Do," are collected four outstanding horribles in brief-writing: inexcusable inaccuracy, unsupported hyperbole, unwarranted screaming, and personalities and scandalous matter.

Most of these unpardonables crop up in portions of the brief other than the Statement of Facts; and, at least in my experience, even the most unprofessionally unprofessional inaccuracy is generally met with in the argument portion of the brief (after the writer's ardor has really been inflamed).

Subject to what is said—and collected—in Section 83, a common fault in many Statements of Facts is the tendency to argue and to editorialize. These are faults, because a court reading a statement wants to feel that it is getting the facts, and not the advocate's opinion, comments, or contentions.

Here are some examples of argumentation included in Statements of Facts, taken quite at random, and followed by comments:

(a) It is perfectly apparent from a cursory reading of the decision of the Commission (see particularly pp. 489a-499a) and of the Court (R. 597-601) as against the relevant portions of the testimony (61a-182a) that the decision of both Commission and Court is based upon the social philosophy inherent in the "no profit to affiliates" theory, and not on the record facts which the Commission should have found or at least considered and passed upon in this particular case. In other words, we do not have an administrative finding of relevant facts, but refusal to consider such facts because of the adoption of standards created ad hoc by the Commission itself.

(b) Only three of these customers were called by the Commission to testify and give evidence at the hearings. The other customers did not appear at the hearing and no evidence as to them was adduced except the figures set forth in the appendix, which were taken by the Commission's agent from the petitioner's books and records. Therefore there is no complete picture of the transactions between them and the petitioner and no sufficient basis for determining main issues with respect to their transactions. Apparently the Court below has assumed that the practices employed by registrant in dealing with these other customers were the same as those followed in dealing with the customers who testified.

(c) There was substantial, affirmative and uncontradicted evidence that the actual purpose of the...