Monday, March 03, 2008

Statements of Facts in Supreme Court Briefs

Two interesting but contradictory opinions about statements of facts.

1. When I took a Supreme Court litigation seminar with Charles Fried (who, of course, had been Solicitor General of the United States under Reagan), he was very emphatic in his belief that a brief's statement of facts section contributes "50 percent" to that brief's effectiveness. The statement of facts, in his view, was your chance to show the Court that you could describe the case in a neutral and balanced fashion, thus lending credibility to the rest of your arguments.

2. But in this video (about 3-4 minutes in), Justice Thomas tells Bryan Garner that he "never" reads the statement of facts section in a brief. He says that instead, he reads the appellate court's opinion, and he'll learn about the facts from there; this seemed to be because the appellate court isn't as likely to have had an agenda in describing the facts. He does clarify that in complicated factual cases, briefing can be helpful. He gives one example of an electrical case years ago (not sure which case this was), in which a group of engineers filed a "wonderful" and "well-written" amicus brief that just explained the "nature of a grid." I wonder how many Justices share this view.

2 Comments:

Blogger Garry said...

So I am mistaken in thinking that questions of fact are established by juries and lower courts and the supreme court is only reviewing the application of the law?

5:53 PM  
Blogger Stuart Buck said...

Generally, that's true. At the same time, you can describe those facts in a way that is completely one-sided (this hurts your credibility at the Supreme Court), or in a way that is more neutral. In addition, by referring to a "statement of facts" section in a Supreme Court brief, I'm including the portion of the brief that just describes what the law is on a particular issue; again, if you can do this in an evenhanded manner, it shows that you're more credible.

6:27 PM  

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