Facts are for trial courts. Reason and logic dictate success on appeal. Focus on the cold, unfeeling law, and you’ll prevail. Logos is the highest mode of persuasion.
These myths pervade every aspect of appellate practice, even the standards of review. Thus, appellate courts review factual questions for “clear error” but afford no deference to a trial court’s answers to “legal” questions. And appellate judges are nothing more than unfeeling robots who methodically cut through the flames of passion with the cold steel of reason.
But do any of these apparently self-evident truths hold water?
Put simply, “[t]he law doesn’t matter a bit, except as it applies to a particular set of facts.” Alex Kozinski, The Wrong Stuff, 1992 BYU L. Rev. 325, 330 (1992) (emphasis in original). Like King Solomon, judges across this country are on a quest, aided by legal prowess, to find justice amid messy factual disputes.
And our job as appellate lawyers is to present those messy facts in a compelling narrative that leads the court to conclude that ruling for our client is the just result. How do we do this? By telling a compelling story. This shouldn’t be too difficult because, after all, as Chief Justice John Roberts said in an interview with Bryan Garner, “[e]very lawsuit is a story.” 13 The Scribes Journal of Legal Writing 1, 16 (Bryan A. Garner et al. eds., 2010).