May 11, 2018

The importance of a factum in litigation cannot be overstated. A factum is a party’s written submissions to the court. The factum summarize the facts of the case, the issues in dispute, and the law being relied upon (with the addition of “overview” and “relief sought” sections at the beginning and end of the factum, respectively, the factum is broken down into “facts,” “issues,” and “law” sections). It is generally acknowledged that the factum is the first document read by the court. As a result, the factum is the “first impression” a judge has of a party and her arguments and may set the tone for the hearing.

Given the importance of a factum, judges are frequently asked what makes a well-written, persuasive factum. We have gathered many of those tips offered by judges and our colleagues into one place:

  1. Point first – clearly state the relief being sought at the beginning of the factum. Each section of the factum should also begin with the point being made. Sub-headings may be helpful in this regard.
  2. Short and concise – all courts, including the Toronto Estates’ court, will be enforcing a strict 25-page limit on facta. In addition, distilling one’s argument down to the main points and important facts is often more persuasive than a detailed retelling of the story and exploring every possible facet of an argument.
  3. Short overview – The overview section at the beginning of a factum should be one or two paragraphs at most. The overview briefly introduces the legal issues and sets out where they fit into the larger narrative.
  4. Identify agreed facts – it is helpful to provide the judge with a short summary of what facts parties agree on. It is also important to ensure the facts as stated are correct.
  1. Charts – Chart can be a helpful tool to quickly convey a large amount of material, or to illustrate a point. However, charts should only be used when necessary and not as a means of getting around the 25-page limit.
  1. Don’t get lost in detail – the facts and law sections should clearly relate to the relief sought (which should be set out at the beginning of the factum). Think of the factum as a high level overview of the facts and law, providing detail only where necessary to lead to the conclusion.
  2. Focus on one or two issues (no more than three) – avoid using every legal argument possible to win the case. Focus on the strongest arguments and those that will be pursued in oral arguments.
  1. Build up from the basics – it is helpful to start the law section with the general principles of law and foundational cases (in a short, concise manner). Build up from there with a discussion of more recent cases and/or legal nuances.
  1. Get the law right – ensure that the cases being relied upon are described accurately and actually stand for the point you are trying to make. Also, make sure that the cases have not been recently overturned or are no longer considered good law.
  1. Avoid hyperbole and overusing adjectives – do not overstate or exaggerate the facts or the law. Written arguments are often most persuasive when the reader reaches her own conclusions rather than being told how to react.

As with all aspects of the practice of law, legal writing is an art. It can be developed and enhanced over time with practice.

For more tips on how to write persuasive facta, our readers should also read the Honorable Justice Laskin’s tips found here.