How To Write A Persuasive Factum
If you’re a self-represented litigant in Ontario, you should be aware that winning your legal case may very well depend on how well you can write a factum that presents your legal arguments in a persuasive and succinct manner.
First, you need to be able to communicate – in writing – your legal position in a way that tells the court what the essential content of your factum is all about. Then you need to connect the distinguishing facts of your legal dispute with on-point, relevant case law, including essential support from the evidence you have compiled from your affidavit exhibits.
Easier said than done.
Many unrepresented litigants just don’t have the hours of experience to compete with parties who can afford a full-time lawyer. Litigation lawyers often have years of experience presenting a multitude of legal cases in countless factums. You, on the other hand, only have the limited personal experience of your single civil litigation case to guide you in writing your factum.
However, you should be aware that legal help need not be an all-or-nothing proposition. If writing is not your forte, you should consider retaining the more affordable services of a limited scope lawyer to assist you with the unbundled legal service of presenting your legal arguments, case law, and evidence in the body of your factum.
If you’re on a limited budget, you can get the most out of obtaining unbundled legal assistance with your factum if you first do some of the preliminary footwork in helping the lawyer to get a firm overview and understanding of the essential facts of your legal dispute.
All of which is to say that it is best to ensure you can distill the guts of your case in writing – preferably with a solid skeletal framework of a factum – before you get your draft into the hands of an experienced lawyer to sculpt it for you – to determine what needs to be added, to be taken out, and to be refined for court use.
What follows are some basic, easy tips to keep in mind for writing a persuasive factum. Once you know what a lawyer – and, most especially, a a judge – looks for when reading a factum, it should help you to get the most mileage out of the lawyer whose limited scope assistance you might require to communicate the complex, nuanced elements of your legal case.
And if the below tips help you to do it on your own – because, let’s face it, many self-represented litigants can’t even afford limited scope help – then all the better.
Tip #1: The Facts and Overview Portion of Your Factum Needs to Stay Focused on Those Details That Are Material and Relevant to Your Legal Dispute
Part One of your factum is meant to give the judge a concise and succinct overview of the facts in your case. It should be a condensed overview of the more detailed chronology and facts that you have already presented in the body of your affidavit.
Affidavit writing is a complex art in itself. The main point to keep in mind is that you don’t want to drown the judge in a sea of details that just doesn’t give a clear picture as to what your case is about.
Your factum should begin with an overview that answers these questions by the first page: Who are the litigants? What remedies is the plaintiff seeking?
And then you proceed with a basic background of the facts and chronology of the dispute. Remember, this is a condensed summary of your affidavit. Keep your sentences short and simple.
The judge uses this summarizing portion of your factum to navigate through the more detailed portions of your affidavit. As you will be referencing the respective paragraphs of your affidavit that are summarized in this portion of your factum, you don’t need to regurgitate all the details from your affidavit.
Trust your affidavit and exhibits to convey all the necessary facts, evidence, and chronology behind your legal dispute. This introductory portion of your factum is all about assisting the reader to settle in and get a fair bird’s eye view on the what, who, and when questions that are pertinent to your case.
Once you have succinctly provided the background orientation tour of the facts of your case, the next section takes us to the legal issues…and Tip# 2.
Tip #2: Articulate Your Legal Issue in One Sentence
The Issues section of your factum sets out the legal questions that need to be decided (on the basis of your facts and evidence) before the court can award the legal remedy you are seeking (or, as a defendant, are seeking to defend against).
One rule of thumb to keep in mind is that if you can’t distill your legal issue down to one interrogatory sentence, you probably aren’t asking the right question. If it consistently takes you two sentences to articulate the issue you want the court to ponder, consider the possibility that you are actually asking the court to look at two distinct legal issues – in which case, you need to articulate and enumerate them as two separate legal questions to be decided.
This Issues section of your factum sets out the legal questions that arise from the facts of your dispute. If it’s a breach of contract case, your legal questions should be focused on those grounds. If your dispute is based on negligence or tort grounds, your legal questions should stay similarly focused on such grounds:
Does Party A owe you a duty of care? Was Party A negligent in their dealings with you? If you are Party A, are you asking the court to consider that Party B was contributorily negligent, that the damages were too remote, or that Party B failed to mitigate their damages?
If all such questions are relevant to your dispute, they should be presented as three distinct issues that need to be decided by the court.
But you’re not a lawyer. So, how could you possibly be expected to anticipate and formulate such legal questions in this manner?
Fortunately, you don’t have to sit in a vacuum and guess. We have Tip #3 to guide you.
Tip #3: Use Similar Fact Case Law To Guide You In Identifying and Formulating Your Legal Issues
Self-represented litigants often make the mistake of assuming that their dispute is so unique, that they are going to trial in uncharted territory. They often guess at the legal questions that arise from the basic facts of their dispute.
When a case comes down to a consideration of each party’s credibility and actions, no two cases are exactly alike. That said, you can often find roughly analogous situations in prior published cases that may guide you in formulating the legal questions (and legal grounds) that arise from the details of your dispute.
If you were defamed by a co-worker, you should be looking up cases in which other parties made similar claims. Read enough cases with analogous disputes, and you will start to collect a small archive – even a handful of such cases will be helpful – pointing to a variety of legal issues formulated in a co-worker defamation situation.
You can then essentially choose from a preconceived menu of legal issues that were previously presented in the case law. No need for guesswork. Most published decisions set out the legal questions to be decided before the judge delves into the “meat” of their reasons.
So, use similar fact case law as a guide to presenting the questions that you are asking the court to decide, either as a plaintiff or defendant.
In Ontario, there are free online case law databases you can use to conduct your own legal research, such as canlii.org.
If you find it difficult to read case law judgments – much less figure out how to apply them to your case – consider retaining a lawyer on limited scope retainer to assist you in finding and applying the similar fact cases you are looking for.
Once you have found such cases, then you may realize that legal research is the key secret sauce toward leveling the playing field for self-represented litigants on a tight budget.
All of which brings us to Tip #4…
Tip #4: Use Similar Fact Case Law to Apply Your Legal Arguments to Your Facts and Evidence
After you have laid the groundwork of your factum with your concisely written facts and overview section, followed by a succinct statement of the issues to be decided, it’s now time to take it to the “pay-off” stage of the whole endeavour – the application of your legal arguments in the Law and Argument section of the factum. .
Here, too, use your reading of similar fact case law to guide you in the style of writing your legal arguments. Again, no need for guesswork. Your intended reader is a judge, and so, it will help you greatly to read similar fact decisions that are written by…judges.
Though you may not have the legal experience to compete with opposing counsel, you can greatly compensate by paraphrasing and/or directly copying/quoting the comments of judges in cases that are similar to your own.
All you need to do on your end is to focus your attention on recognizing certain elements of your case in those portions of the case that are on-point with your issues and facts.
And keep in mind that a case may be helpful to you even where the facts are so heavily distinguishable from your case, that there is no point in directly quoting from it.
From a writing perspective, however, the case may be of value to you simply to give you an idea as to how a general breach of contract or negligence or defamation case sounds and feels like.
It can provide you boilerplate legal principles that you can directly quote from, to signal to the judge that you understand the basic factors and considerations that accompany your legal grounds and that you are ready and prepared to apply those legal principles and formulations to the unique facts and evidence of your own case.
Best of all, you can borrow certain legal turns of phrase from such cases, signaling to a judge – and your opponent – that you can indeed write a factum that looks and smells like a document of legal argument, most especially if you consider yourself an otherwise poor writer.
The best thing about case law is that there is no concept of plagiarism that you need to worry about.when writing your factum. You are, in fact, free to copy and paste a judge’s comments and turns of phrase from other published decisions without citing the source. You only need to cite those cases that you are asking the court to judicially consider in support of your legal position.
Otherwise, if you are just cutting and pasting turns of phrase to capture the stylistic flavour of a judge’s comments from a factually distinguishable case, then copy away!
Tip #5: Use Case Law to Guide You In Applying Your Evidence Where Your Case Comes Down to Credibility
Are you seeing a pattern here? In litigation, legal research is indeed the gift that keeps on giving. Once you have in place your small archive of defamation or negligence or breach of contract cases (again, whichever case applies to your general situation), you should get a feel for how a judge looks at a party’s evidence in order to establish credibility.
Where parties are contesting one another’s evidence, the case often does come down to a judicial contest of credibility. Many factums of self-represented litigants suffer from their inability (and, often, unwillingness) to adversarially test the strengths and weaknesses of the evidence they’re bringing to a trial or hearing.
Factually analogous case law can often give the researcher an insight into the kind of corroborating documentation a court requires in weighting a party’s evidence. It provides insight into the quality of evidence that has been advanced in other analogous trial situations, often providing a cautionary tale as to the kinds of evidence that don’t make the grade.
Here, too, legal research provides yet another basis for leveling the playing field for a self-represented litigant when going up against opposing counsel.
The bottom line: Don’t overestimate the quality of your own evidence…and don’t leave it up to blind guesswork. There may very well be a similar fact case out there that can provide you an instructive guideline as to what works and what doesn’t.
In an ideal world, you will find a case that is so factually on point with your own, you can actually cite and reference the decision in the body of your factum, including quoted excerpts.
More often than not – particularly in those cases that turn on witness credibility – you may have no case worth citing, but still, you will have been duly warned about the kinds of argumentative pitfalls and evidence to avoid.
And that kind of guideline, in the end, may be of great strategic value to you, giving you the kind of informed legal perspective that you would not otherwise have if you didn’t systematically employ and look at the case law in this fashion.
Tip #6: Don’t Make It Personal
Many self-represented litigants damage their legal position when they seed their factums with gratuitous derogatory comments about the opposing party, or even with bitter observations about the workings of the judicial system.
Such factums signal to the reader a lack of focus, but more significantly, they signal to the reader that the litigant has a poor grasp on the relevance and materiality of their own evidence. And once the judge loses confidence in the reliability of a party’s evidence, the case is lost.
When you read enough cases, you might notice that judges like to throw around the term reasonable. At the end of the day, you must always remind yourself to strike a reasonable tone, no matter how emotional you feel about suffering an injustice at the hands of the opposing party and their counsel. So, keep the extraneous comments out of your factum and always stay focused on those matters that are both material and relevant to the legal grounds and issues arising out of your dispute.
Tip # 7: Apply the Above Advice From The Outset of Your Case, at The Pleadings or Application Stage
As a self-represented litigant, much of the above advice will be of limited value to you unless it is applied consistently from the very outset of your case.
Do you even have a case worth pursuing or defending against?
By the time you get to the factum stage, you will need to ensure that your legal grounds have been properly pled; that you have credible, relevant, and material evidence at hand to support your position; and whether an analogous position to your own has either been supported or denied by a judge in a previous published decision.
In sum, the proper time to conduct your legal research is ideally before you file and serve your claim or application. In the end, the initial outlay for case law research – in either time or money – may very well keep you from tolling much more ruinous costs down the line, to avoid fielding a case that is running little more than on the fumes of your passion and (over)confident certainty that the judge will otherwise recognize the wisdom of your legal position.
More often than not, they won’t. So, don’t leave it to uninformed guesswork. Dig into the case law and do your own research…or consider hiring a lawyer on limited scope retainer to do it for you.
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The preceding should not be relied on as legal advice. It is offered as general information only, on an as is basis.
James Cooper, a Toronto area lawyer, provides flexible limited retainer arrangements and affordable legal help for self-represented litigants (in both civil litigation and family law cases) and for sophisticated clients concerned with managing their legal fees.
Mr. Cooper also provides quality professional legal research assistance and civil litigation support services to lawyers, law firms, and members of the public throughout the Greater Toronto Area (including Markham, Thornhill, Etobicoke, and Richmond Hill) and throughout the Province of Ontario.