Duhaime's Law Dictionary


Factum Definition:

The written summary of a litigant's position to be taken and expounded upon in a judicial proceeding, including a concise summary of relevant facts and law and brief arguments with reference to authorities where applicable.

Related Terms: Appellant, Appeal, Written Submissions

Also referred to as a brief.

The word factum is used in law to refer to a litigant's written submissions, a core booklet of clear, simple and concise argument. It is most often used in the content of an appeal but may also be used to refer to written submissions given to a lower court, of first instance.

The usual form of a factum varies from jurisdiction to jurisdictions and often conforms to the individual preferences to the drafting lawyer:

  • Statement of the order being sought;
  • Recital of relevant facts;
  • Statement of the issues;
  • Statement of relevant law and argument (why your client is right or why the lower court was wrong); and
  • List of authorities cited.

A factum, for the purposes of an appeal, is typically subject to strict rule concerning length and content, lest lawyers get carried away with open-ended requirements, as they are wont to do. One of the real challenges in a factum is identifying and staying with the few live issues on appeal. As Charles O'Connor once said (quoted in 1 Legal Chatter 17 (1937)):

"The great lawyer is not the one who knows the most law, but understands what the point involved is. I have known many cases go to the Court of Appeals where neither party knew what the real point was."

Typical requirements include numbered paragraphs, specified margins, line numbering, double-space lines and printing on one side of the paper only, to allow appeal judges room to write their own notes on their copy of the factum. Some appellate court rules of court are so anal retentive as to even insist on a certain font and point size (eg. Arial or Times Roman, 11 point). And if nothing else, appeal court registries are extremely - to a fault - anal retentive to the rules of court in the rejection of key appeal documents if they do not conform to the exact letter of the applicable Court of Appeal rules, a huge problem if some deficiency is discovered as a deadline is upon an appellant.

Leslie Muir wrote:

"The factum is the entry point to the judicial minds that will determine your client's fate.... (M)uch of the decision making of the (appeal) panel is done based on your factum."

Justice Laskin wrote:

"In most appeals, the factum is more important than the oral argument and in some cases, far more important."

The factum is at least a key element to a successful appeal for several reasons:

  • It is the appeal judge's first and therefore, arguably, the most important look at a case - "first impressions" are significant;
  • The content will inevitably give the appeal judge an impression of the author, good or bad or neutral;
  • It helps form and package the oral argument phase; and
  • It remains with the judge after the oral argument has ended.

REFERENCES:

  • Abrams, Linda and others, Civil Procedure, Halsbury's Laws of Canada (Toronto: LexisNexis, 2008), page 951 (¶HCV-285).
  • Duhaime, Lloyd, Written Submissions - The Art of It
  • Laskin, John, A View From The Other Side, 127 Verdict 48 (2011)
  • Laskin, John, Forget the Windup and Make the Pitch: Some Suggestions for Writing More Persuasive Factums [retrieved from the Internet on October 30, 2011 from http://www.ontariocourts.on.ca/coa/en/ps/speeches/forget.htm and stated to be "published in the Advocates' Society Journal, Summer 1999"]. John I. Laskin, J.A.
  • Muir, Leslie, Factum Writing for the British Columbia Court of Appeal, 127 Verdict 38 (2011)
  • Rosenberg, Alvin and Huberman, Marvin, Appeal Advocacy (Toronto: Carswell, 1996), pages 25-38.

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