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STATEMENT OF FACTS; IMPLICIT ARGUMENT
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YOU MUST MAKE AN
IMPLICIT ARGUMENT
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EXPLICIT v. IMPLICIT
- ex·plic·it (k-splst)
adj.
1.
a. Fully and clearly expressed; leaving nothing implied.
b. Fully and clearly defined or formulated: "generalizations that are powerful, precise, and explicit" (Frederick Turner).
2. Forthright and unreserved in expression: They were explicit in their criticism.
3.
a. Readily observable: an explicit sign of trouble.
b. Describing or portraying nudity or sexual activity in graphic detail.
- STATES THE BECAUSE WHY CLEARLY.
- im·plic·it (m-plst)
adj.
1. Implied or understood though not directly expressed: an implicit agreement not to raise the touchy subject.
2. Contained in the nature of something though not readily apparent:
"Frustration is implicit in any attempt to express the deepest self" (Patricia Hampl).
3. Having no doubts or reservations; unquestioning: implicit trust.
- DO NOT ANSWER THE QUESTION: "WHY?"
THIS IS FOR YOUR READER; READER DRAWS
CONCLUSIONS; READER ANSWERS THE "WHY".
- ARRANGE & EMPHASIZE FACTS
LEAD THE READER TO
YOUR DESIRED CONCLUSION
- Well Plead Complaint;
SHORT PLAINT STATEMENT
Survive a Rule 12(b)(6) DISMISSAL
- NO
CONCLUSORY
ALLEGATIONS
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Any argument, whether implicit or explicit, is an answer to the question "why".
The answer to these and other "Why?" questions is an argument.
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WHY?
- Why should the jury disbelieve that witness?
- Why should the judge exercise his discretion in your client's favor?
- Why should the appellate court extend that principle of law?
- If the answer to the question "Why?" takes the form "because"
- THEN THE ONLY ANSWER CAN BE:
- NEVER ASK A QUESTION IF YOU
DON'T ALREADY KNOW THE ANSWER.
- IF YOU CAN'T GET THE ANWER:
DISCOVERY
- WE DON'T ANSWER "WHY".
WE DON'T TALK ABOUT THAT.
- TRIER OF FACT
DRAWS ALL CONCLUSIONS
- BECAUSE:
- appellate court,
precedent,
public policy,
and logic;
- DEMAND IT
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"TRUTH"
- STATEMENT OF FACTS
(AS CONTAINED IN THE RECORD)
- UNREBUTTED FACTS
STAND AS TRUTH
- T.K. PICKS HIS NOSE
AND EATS HIS
BOOGERS
- ETHICS
- RULES OF COURT
- FEAR
- OPPONENT'S ANSWER
- I was afraid he did,
but not anymore.
- SANCTIONS OR
OTHER CONSEQUENCES
- MOTIVES
- GOOD FAITH;
BAD FAITH
- ARRANGE & EMPHASIZE FACTS TO LEAD
THE READER TOWARD THE DESIRED CONCLUSION
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STRATEGY
(WHAT)
- The first job of any writer is to keep the reader reading.
A Statement of Facts, like any other piece of writing,
does you no good if it is not read. Therefore, make
your writing interesting and easy to read.
- Since the Statement of Facts is probably your first chance to show the court that you are indeed candid and trustworthy,
the Statement of Facts should contain extensive and scrupulous citations. Every fact must be cited -- and cited correctly --
or otherwise supported (e.g., by a footnote explaining that the court can take judicial notice, etc.) If the citation does not
obviously support the fact, explain the citation or rework the fact.
- LEGAL
ACTORS
- 5
- DID NOTHING WRONG
- DID SOMETHING WRONG
- WERE WRONGED
- WITNESSES
- LEGAL TEST OR
CONSTRUCT
- ?
- WHO ARE YOU OPPOSING?
- WHO IS A PARTY?
- WHO IS A DAMAGED PARTY?
- WHICH PARTY'S STORY BEST
PRESENTS YOUR THEME?
- WHOSE POINT OF VIEW
BEST ADVANCES YOUR THEME?
- Enforce your conception of the legal actors by consistently referring them functionally, descriptively,
or in terms that will bring to mind how you want them thought of.
A person whose youth or immaturity you want to emphasize could be consistently referred to by
his or her first name or nickname (e.g., "Mikey"), a person whose status you wanted to boost
could be consistently referred to by "Mr." or "Ms." or a title, a person whose crucial aspect was
the power to hire and fire could be referred to as "the Supervisor", a party that you wanted the
court to think of as a massive business entity could be consistently referred to as "the Insurance
Company" or "the Corporation", etc.
- THEME
- DETERMINED BY:
- SUBSTANTIVE LAW
- POLICY
- EMOTIONAL CONTENT
- TYPES OF PARTIES INVOLVED
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TACTICS
(HOW)
- Maintain to the extent possible the point-of-view you have chosen.
If necessary to maintain your point-of-view, you may even use the
passive voice rather than the active.
- PASSIVE v. ACTIVE
VOICE
- To emphasize the action rather than the actor:
After long debate, the proposal was endorsed by the
long-range planning committee.
- To keep the subject and focus consistent throughout a passage"
The data processing department recently presented
what proved to be a controversial proposal to expand
its staff. After long debate, the proposal was endorsed by . . . .
- To be tactful by not naming the actor:
The procedures were somehow misinterpreted.
- To describe a condition in which the actor is unknown or unimportant:
Every year, thousands of people are diagnosed as having cancer.
- To create an authoritative tone:
Visitors are not allowed after 9:00 p.m.
- RULE OF PROPORTIONALITY
- Emphasize those facts that are important to you.
Remember that matters on which you spend a lot of time will seem important
and matters on which you spend only a little time will seem unimportant.
Make this Rule of Proportionality work in your favor, rather than against you.
Traditional methods of emphasis include quotation from the record, extensive
(rather than sketchy) description, and repetition. More innovative methods of
emphasis include reproduction of exhibits (such as photographs or documents)
and presenting facts in chart or graphic form.
- Describe, don't characterize. (Or, as the novelists say "Don't tell 'em, show 'em.")
This rule is a consequence of the maxim that the Statement of Facts is an implicit,
not an explicit, argument. Thus, instead of saying "Mrs. X was shocked when she
received the telegram. (R. ...)", say:
"When Mrs. X received the telegram, her face turned white, she clutched at her
heart, and she screamed 'My God, my God, my God'. (R. ...)".
- Use one-word arguments to acknowledge and diminish your opponent's facts.
Although explicit arguments are not permitted in the Statement of Facts, one-word
arguments such as "although", "nevertheless", "however", and "even though"
(I know, that's two words) are accepted. The beauty of these one-word arguments
is that they meet your ethical responsibility to candidly state your opponents facts
while simultaneously diminishing them:
"Although defendant denied making the statement (R. ...), three non-party witnesses,
Smith, Jones, and Adams, all testified that they heard defendant make the statement. (R. ...) Smith testified that ...."
- Use facially non-argumentative headings to help enforce your
conception of the facts. Headings can be used in the
Statement of Facts, too. Although your headings will be
facially non-argumentative, you should draft them to divide
up the story the way you want it divided, emphasize the facts
you want emphasized, and thus advance your implicit argument.
- FACTS IN CONTEXT;
- Begin the Statement of Facts with a short, perhaps teasing, introduction of the crucial facts, e.g.:
"When the police found the murder victim's body, it was covered with blood, which turned out
to be her own, and with bloody fingerprints, which turned out to be those of the defendant. (R. ....)"
- OR
- Begin the Statement of Facts with a one- or two-sentence introduction that is not facially argumentative, e.g.:
"This is an age-discrimination lawsuit resulting from the lay-off of Plaintiff, a sixty-three year-old,
long-time employee of defendant. (R. ...) Plaintiff claimed that he was laid off even though younger,
worse-performing employees with less seniority were not. (R. ....) The facts are as follows:"
- Now WRAP your MIND around THAT...
- CREATED 03.26.2013
by Lisa Stinocher O'Hanlon
using XMind Software
- For More of my Maps:
https://www.xmind.net/share/hennalady/
- For More of my Musings:
http://angryjeweler.wix.com/write
http://angryjeweler.wix.com/thehennalady
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by David L. Lee
http://www.davidleelaw.com/articles/statemen-fct.html
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n fact, if you do all this, you may want to submit a brief with no Argument section at all --
just the Statement of Facts -- to see if all those writing instructors and writing books
are correct. Let me know how it works!
- www.davidleelaw.com_articles_statemen-fct.pdf