What’s a factum?
In the Canadian legal system a factum is a written argument or statement of law and facts that is prepared and presented for trial or appeals. It is essentially meant to inform the judge about the facts of the matter and argue a given position on one or more legal issues. For our American friends down south, this is what you would refer to as a ‘legal brief’ in your jurisdiction.
Structure of a Factum:
- Identify issues
- Anticipate questions
- Provide answers
- Address counterarguments
- Support position with substantive law
Why does improving your factum writing matter?
Actively incorporating a persuasive writing style will help guide or lead the judge to the conclusion that your client’s position on a given issue/s is the correct one (rather than telling them that it is the right conclusion). Not only that but judges read the factum before hearing oral arguments, which means that the factum is actually your opportunity to make a memorable first impression. In addition, once the matter has been addressed or disputed, judges refer to the factum when they write their decision so you want to ensure that this written piece of work is strong and convincing.
Predictive vs. Persuasive Writing
While predictive writing is more objective, informative, and neutral, persuasive writing finds itself to be more Informing, persuading and advocating. The intention behind persuasive writing is to avoid forcing the reader to accept your point of view but rather guide them in reaching it themselves. Persuasive writing is ultimately less aggressive and more influential - people don’t like being told what to think or do, they like to come to conclusions on their own so this is perfect for factum writing since you are trying to persuade the reader to understand and agree with your client.
Structuring your Factum WITH Persuasive Writing
- Theory of the case/thesis of the case:
Theory is not something you share, it’s something you establish and write your factum around. This is where you determine what you want the reader to take away from your factum. Also consider your audience - why should they care? Seek to tell a story from your client’s perspective, encourage the court to get to know your client, who they are, what their motives are and inform the reader about some of the factual, emotional and underlying reasons why they acted in the way that they did.
When you’re working on your theory, consider legal solutions - in other words, what do you think the proper legal outcome of the case is? How will you achieve this?
- Use facts to persuade
Facts are crucial, they demonstrate that a decision is legally correct. Factums have statements of facts sections… use this, present your client’s perspective to the reader. Use action points in your story to make the reader feel as though they are experiencing the facts in-real-time rather than using a passive voice. Emphasize significant facts, of course, but make sure to watch your tone, you should avoid creating resistance from the reader - again, don’t tell them how to feel, guide them towards it.
- Open with your strongest point
Structure your factum based on your strongest point rather than your opponent’s weakest point. Use affirmative and context/point-first sentences. Clearly state your client’s desired outcome based on the legal rule and restrict its application, if possible. Use case precedent for comparison purposes and for analogous distinctions. Always address counterarguments and unfavorable case precedent - not only do you have a duty to raise precedent irrespective of its effect on your argument but it also demonstrates good faith and due diligence. You should highlight the other party’s burden of proof. For example, they can’t win unless they prove xyz. And finally, consider inconsistencies in the other side’s argument, is it overblow, distorted or straight up wrong?
- Focus on clean structure and organization
There is nothing more unappealing than an unstructured and unorganized piece of writing… who wants to read that? To avoid this, guide the reader with headings and subheadings and ensure that formatting, sentences and words look good (this can impact the reader’s perception). DO NOT use dump truck quotations… In other words, avoid block quotes, it’s visibly unappealing and judges hate them. Instead paraphrase, cite and/or use short quotes. Lastly, don’t forget to proofread!!
LegalTech Products & the Marketplace
Here are some legal tech products on the market today that you may be interested in looking into to help with your legal research and writing process:
Product: Alexsei
Function: Alexsei is a cloud-based legal research automation software that will generate a legal research memo within 12-24 hours based on your queries.
Product: CiteRight
Function: Cites cases, generates a live book of authorities, and manages advanced
document assembly. Their integrations with Microsoft Word allow you to access all of
your relevant case law without having to switch between your document and your
browser.
Product: CVN, Courtroom View Network (US-based)
Function: Their CVN video library includes over 1,000 trials with tens of thousands of
hours of fully-indexed, searchable video. The video library is meant to help attorneys
better prepare for trial. It also serves as a training tool for litigators and law students.
To learn about some of these software and their features feel free to read our previous blog on ‘Resources to Help Your Firm Improve Legal Research and Writing’ where we described them in greater detail. Otherwise, check out the marketplace to compare a wider and more extensive range of legal tech solutions and tools.
