If you have the facts on your side, pound the facts. If you have the law on your side, pound the law. If you have neither the facts nor the law, pound the table
- Unknown
The argument section is the core of a factum. It will likely make up about half of the factum. In the argument section, you apply the law to the facts of your case and try to persuade the court that your desired outcome is the right outcome. In addition to rely on legal argument, you may also include policy arguments that support your desired outcome.
Know Your Audience
When writing the argument section of the factum, it is important to keep the audience in mind. For an appellate factum, your audience is the judges on the appeal court. Your audience is not your client.1
This distinction can be important. There may be cases where a client wants to include something that is legally irrelevant or not pertinent to the issue the judges have to decide. Ultimately, you will need to explain to the client what the judges will be focused on and tailor your argument accordingly.
Justices David Stratas, Kathy Feldman, and Janet Simmons have given some important insights into features of your audience that will impact how you frame your argument.2 For instance:
- Judges need education about the appeal. Even a judge who is very familiar with the area of law will need education about the facts of your case. You have likely spent months or years working with your case and know the facts inside and out. Your job is to clearly (and persuasively) educate the judge about the facts of the case.
- Judges need context before detail. This one is not just limited to judges. Studies have consistently found that people understand details better when they know why they are learning about those details. Context brings to mind related existing knowledge and allows the reader to incorporate new details into that existing knowledge.3
- Judges are practical, problem-solvers.
- Judges tend to prefer a simple, narrow solution that resolves the issue without creating unexpected implications for other areas of law.
- Judges are critical, cautious readers. They understand that factums are a persuasive piece of writing and treat them accordingly. Given that judges are already approaching your factum with a cautious mindset, don't give them any reason to doubt your credibility. Be accurate when presenting both the law and the facts. If there are some facts or law that will hurt your submissions, acknowledge them and address them upfront.
- Judges are dispensers of justice. Within the boundaries of the law, judges want to do justice between the parties. When you are presenting the facts of your case and arguing for your desired outcome, be sure to explain why the equities of the case favour your client.
- Judges are human. If there are reasons why a party should win, you want to give the court a path to that result.
Structure & Components of the Factum
In your issue section, you identified your one to three issues. It is possible that each issue may have some sub-issues or distinct points you want to make. Headings serve as an excellent way to structure your factum.4 Specific headings and subheadings allow the reader to follow your argument.
Most of your factum will consist of paragraphs. Try to restrict each paragraph to one main idea or topic. Use topic sentences at the beginning of each paragraph to provide the necessary context and explain the point of the paragraph.5 The rest of your paragraph will discuss, support, and expand upon that point.6
As you transition between paragraphs, be sure to include transitional or connecting words that allow the reader to understand where they are in the argument and how each point relates to the other. Transitional words like "since", "because", "thus", and "therefore" demonstrate a logical relationship. Words like "however", "although", "but", and "conversely" show contrast or comparison between different points. You can demonstrate that the analysis is progressing through the use of words like "first", "also", "next", and "in addition". Finally, if you need to return to the main point after making a concession, use words like "still" or "nevertheless".7
While most of your factum will be paragraphs, don't be afraid to use different ways of presenting the same information. For instance, a bulleted or numbered list (ideally with no more than 5 items) can break up block of texts and allow a reader to quickly process the key points.8 Similarly, visual aids can be quite effective in presenting complex information. For example, a diagram will likely enable the reader to understand a complex corporate structure easier than a lengthy, written explanation. For more information on the use of visual aids, see chapter 11 "The Use of Visual Aids in Written Advocacy".
Framing the Argument
At its core, your argument essentially consists of three elements:
- The controlling law (including the standard of review);
- The relevant facts; and
- Your conclusion applying the law to the facts.9
Within each element of your argument, there are opportunities for advocacy. While, of course, counsel must be accurate when stating the law, you will want to distinguish unhelpful cases. Conversely, you will also want to explain why those cases that reach your desired outcome are on all fours with your case.
Your legal argument will also be influenced by your position on appeal and the standard of review. As the appellant, you need to demonstrate why the trial judge made an error and the impact that error had. You also need to recognize what standard of review the court is applying and demonstrate why the error below is the type of error an appeal court should be concerned with. For the respondent, you need to argue that either the trial judge was right (perhaps even for the wrong reasons) or if the trial judge made an error, it was a minor, harmless error that did not impact the outcome.10 Depending on the standard of review, you may also argue that deference is owed to the trial judge or the trial judge's decision is reasonable even if the appellate court might have reached a different decision.
When it comes time to present the facts, you may want to include some facts that are not strictly necessary, but have persuasive value. If you choose to present some extra facts for context or to portray your client in a sympathetic light, be careful not to go too far. It is a fine line and you want to strike the right balance.11
Although the factum has a fact section, you may also want to consider holding onto some facts for the argument section. In other words, the first time the fact is mentioned is in the argument section. This can be useful if the fact would be most impactful when presented alongside your argument.12
Footnotes
1 "Some Factum Suggestions." Justices David Stratas, Kathy Feldman, and Janet Simmons. (August 2010), at p. 1.
2 "Some Factum Suggestions." Justices David Stratas, Kathy Feldman, and Janet Simmons. (August 2010), at pp. 1-2.
3 "Know your reader's brain: What cognitive science teaches us about writing appellate factums". Dr. Michael Kiang, Lauralee Bielert, and the Honourable John I. Laskin. The Advocates' Society Journal (Spring 2023), at p. 8.
4 "Know your reader's brain: What cognitive science teaches us about writing appellate factums". Dr. Michael Kiang, Lauralee Bielert, and the Honourable John I. Laskin. The Advocates' Society Journal (Spring 2023), at pp. 8-9.
5 "Know your reader's brain: What cognitive science teaches us about writing appellate factums". Dr. Michael Kiang, Lauralee Bielert, and the Honourable John I. Laskin. The Advocates' Society Journal (Spring 2023), at pp. 10.
6 "Forget the Windup and Make the Pitch: Some Suggestions for Writing More Persuasive Factums". The Honourable John. I. Laskin J.A.. The Advocates' Society Journal (Summer 1999), at p. 5.
7 "Forget the Windup and Make the Pitch: Some Suggestions for Writing More Persuasive Factums". The Honourable John. I. Laskin J.A.. The Advocates' Society Journal (Summer 1999), at p. 17.
8 "Know your reader's brain: What cognitive science teaches us about writing appellate factums". Dr. Michael Kiang, Lauralee Bielert, and the Honourable John I. Laskin. The Advocates' Society Journal (Spring 2023), at p. 12-13.
9 "Forget the Windup and Make the Pitch: Some Suggestions for Writing More Persuasive Factums". The Honourable John. I. Laskin J.A.. The Advocates' Society Journal (Summer 1999), at p. 7.
10 "Forget the Windup and Make the Pitch: Some Suggestions for Writing More Persuasive Factums". The Honourable John. I. Laskin J.A.. The Advocates' Society Journal (Summer 1999), at pp. 8-9.
11 "Know your reader's brain: What cognitive science teaches us about writing appellate factums". Dr. Michael Kiang, Lauralee Bielert, and the Honourable John I. Laskin. The Advocates' Society Journal (Spring 2023), at p. 11.
12 "Some Factum Suggestions." Justices David Stratas, Kathy Feldman, and Janet Simmons. (August 2010), at pp. 3-4.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
