HOW TO PREPARE A FACTUM?

Article by Nickolaus Ng

What is a Factum?

- A written argument or brief filed with the court that is used by a lawyer to argue a motion or case before a judge.

- Also commonly used in mooting.

What is the purpose of a Factum?

- The judges read the facta of all of the parties, and read the cases or legislation referenced in each factum.

- This enables the judges to be very familiar with the issues by the time of the hearing.

- A guide for the judges and the lawyers to follow at the hearing and forms the basis for the arguments made in court. (like a script for a speech)

- Provides the court with its first impression of the case and of you as counsel.

What are the requirements of a Factum?

1) Cover Page

- Case number

- Parties

- Your names

- Your firm/chambers name

- Indicate whether you are arguing for the appellant/respondent.

2) Statement of the Case

- This is a brief summary of the main issues in the case to let the judge know what to expect.

- However, although being brief, you can take several paragraphs, or up to one page, in order to make a clear presentation to the appellate judges as to why you are before them.

- What is the appeal about?

- What is the key issue upon which the appeal turns?

- Why will appellate intervention be required to right the error committed at the lower court?

3) Agreed Summary of the Facts

- State the facts relevant to the appeal.

- Make reference to the transcripts of the original trial, as well as anything that was admitted into evidence at trial (expert reports, police evidence etc.)

- When there is no disagreement as to the facts, the two parties will submit an agreed statement of facts.

- The trial decision being appealed is also summarized in this section. Your summary must not mislead the Court, but it can draw attention to certain aspects of each issue.

4) Grounds of Appeal

- This is the main part of the factum where you set out your argument.

- If you listed down a few arguments, select the strongest 3 arguments to advance and start with your best argument of the 3.

- Every paragraph must be numbered.

- Underscore your key points of argument with the use of subheadings to make it easier for the judge to follow your oral argument and refer to a particular section or quote.

- Each paragraph should contain one point, organized logically to show the judges why the result you request is reasonable and fair.

- Any references supporting that point should be mentioned immediately after the paragraph where it was used.

- Short, sharp quotations from the transcript to support your argument can be very effective.

5) Order Requested

- In this section you state the remedy or result that you would like.

E.g.) It is respectfully requested that the appeal be [granted or dismissed] and the decision of the trial judge be [overturned or upheld].

6) Concluding Formalities

- Name/s and signature of the counsel.

- Date of submission.

7) Appendix – Authorities to be Cited

- Following the body of the factum is an appendix that lists all of the references made in the factum.

LASTLY,

Always remember to proofread your factum to make your factum more concise and to ensure accuracy.