Appellate advocates regularly wrestle with the task of presenting the facts of a case in a light most favorable to a client without engaging in “argument.” Although there is no bright line separating “argument” from effective advocacy, a review of the decisions reveals several helpful principles.
The Pennsylvania Rules of Appellate Procedure specifically proscribe argument in a statement of facts:
Rule 2117. Statement of the Case
(b) All argument to be excluded. The statement of the case shall not contain any argument. It is the responsibility of appellant to present in the statement of the case a balanced presentation of the history of the proceedings and the respective contentions of the parties.
Pa. R.A.P. 2117 (Emphasis added).
In one reported decision, the Pennsylvania Superior Court chided counsel for “pervasive violation of this rule.” Helpin v. Trs. of the Univ. of Pa., 969 A.2d 601, 608 (Pa. Super. 2009).
Although the Federal Rules of Appellate Procedure contain no similar rule, some of the Circuits have adopted local rules that prohibit argument. The Seventh Circuit local rule provides:
(c) Statement of the Facts. The statement of the facts required by Fed. R. App. P. 28(a)(7) shall be a fair summary without argument or comment. No fact shall be stated in this part of the brief unless it is supported by a reference to the page or pages of the record or the appendix where that fact appears.
USCS Ct App 7th Cir, Circuit R 28.
Such rules have inspired motions to quash and to sanction counsel for submitting briefs that allegedly violate them. This has inspired motion practice with inconsistent results. In Wiesmueller v. Kosobucki, 547 F.3d 740 (7th Cir. 2008), Judge Posner reviewed the case law and concluded that forbidden “argument” in the statement of facts “means an argumentative rather than a neutral presentation of the facts of the case.” Id. at 742. In the author’s opinion, this definition begs the question and seems to invite additional motions for sanctions for filing an “argumentative” rather than “neutral” statement of facts. In Day v. Northern Ind. Pub. Serv. Corp., 164 F.3d 382, 384 (7th Cir. 1999), the Seventh Circuit personally sanctioned an attorney for filing a brief with an “argumentative” statement of facts that treated appellant’s legal “position as established, even though the district court found it to be unsupported.” Id. at 384. In Palmquist v. Selvik, 111 F.3d 1332 (7th Cir. 1997), the court struck the defendants’ statement of facts as improperly argumentative, which it defined as failing to cite testimony favorable to the plaintiff and failing to “give the entire story” of the testimony. Id. at 1337. It cited Avitia v. Metropolitan Club of Chicago, 49 F.3d 1219, 1224 (7th Cir. 1995), in which the same court warned counsel of the possibility that a brief could be stricken for treating contested testimony of a losing party’s witnesses as established.
In Markowitz & Co. v. Toledo Metropolitan Housing Authority, 608 F.2d 699 (6th Cir. 1979), the Sixth Circuit noted that where issues of fact are “bitterly contested,” the parties may explain their respective versions “as long as it is clear that it is just their version, and as long as both the findings of the trial court and their opponent’s position are also accurately and fairly presented.” Id. at 704. A “scrupulously honest, straightforward summary of facts of a case” can be persuasive in favor of one side or another. However, argumentative language that trial court’s findings are “astonishing,” and “extraordinary,” or describing an opponent’s position as “ludicrous” is not acceptable. Id. at 704.
Although somewhat inconsistent, these opinions provide helpful principles. In a statement of facts:
- Don’t present your client’s position as “established” if it is not.
- Don’t omit obvious facts supporting your adversary’s position.
- Don’t label your opponent’s position as “astonishing,” “extraordinary,” “ludicrous” or the like.
- One may, however, assert a “position” about the facts of the case so long as it is identified as such.
After presenting the facts—generally chronologically, giving them the best possible “spin” in your client’s favor—one may summarize the “positions” of the parties in the following manner:
Plaintiff contends that defendant was negligent because . . .
Defendant, on the other hand, denies negligence because . . .
In an appellate brief, the statement of facts may contain a section dedicated to the “trial” in which the respective positions of the parties are outlined in the following manner:
The matter proceeded to trial on January 20-23, 2010. At the trial, plaintiff argued that defendant was negligent. In support of that proposition, she called Witness X, who testified . . .
Defendant contended that he was not negligent, testifying . . . . However, defendant admitted that . . . .
If expert witnesses testified, then the lines of cross examination can be summarized and emphasized:
Plaintiff’s medical expert, Thomas Jones, M.D., testified that the defendant should not have prescribed Bad-Drug because it causes stomach ulcers. Tylenol could have been used in its place.
The defense expert, Marcus Welby, M.D., testified Bad-Drug was appropriately prescribed. He agreed, however, that the Physicians’ Desk Reference lists gastrointestinal ulceration as Bad-Drug’s “most serious risk;” it predisposes a patient to ulceration; it must used with caution; patients with coagulation disorders and older patients should avoid it; a single dose can start the inhibition of prostaglandin; and an ulcer can occur “at any time.”
These techniques allow an advocate to present a client’s position to the court in the best light without engaging in “argument.”