Weilers LLP

What is a “Factum”?

What is a “Factum”?

June 18, 2024

By Brian Babcock

We have written before about the importance of occupying the “moral high ground.”

But how do you do that?

Everything you do in the court process may play a role- pleadings, evidence and oral argument. But perhaps nothing is as important as the factum.

If you are new to the court process, you may have heard the term and wondered, “what is a factum?”

You might want to think that cases are decided strictly based on who is right and who is wrong, but in a surprisingly large number of cases, the quality of argument – both written and oral- makes the difference.

The factum is a crucial part of that argument. A factum is a written statement of fact and law, or written argument. They are required in every application  or appeal and on many motions. The difficulty for a self-represented party is knowing what goes in the factum, the appropriate organization, and how to write persuasively.

The Rules of Civil Procedure will tell you a minimal amount about whether a factum is required, and how it should be organized. What they do not tell you is that factums are often used voluntarily even if not required.  They are supposed to contain argument, but not to be argumentative – the focus is stating the facts and the related law. It is how that is done that is the art.

In appeal courts, the factum is considered more important than oral argument. The time for oral arguments on appeal is strictly limited. Judges have little patience for an oral argument which lacks focus or rambles- those problems can be addressed by a well written factum. It is the surest route to capture the judges heart and mind before the hearing.

On appeals sometimes all the judges have time to read in advance is the factum. A busy judge hearing Superior Court motions is even more dependent on a well written factum.

The judge knows nothing about your case before it lands on their desk. The factum should tell what the case is all about, what is the issue that will decide the case? Are there social policy or administrative concerns that affect the case?

In appeals in particular, the decision may have implications beyond the individual case. The  judges will need to know about and consider those factors.

Since first impressions are often lasting impressions, doing a good job on the factum may be a huge element of having the case decided in your favour. On the other hand, a poorly written factum may snatch defeat from the jaws of victory.

Like so much in the legal process, factum writing is an art. Many lawyers attend continuing education courses just to learn how to write factums better. Because the judge often reads the factums before the hearing, a well written factum will start the process of convincing the court which side has the moral high ground.

A good factum tells a story and persuades. A dull difficult to read factum may hide the strength of your story.

That good story starts with a road map in the overview statement that gives the context of the case. The facts portion of the factum goes on to tell the story in detail. The section on law should dovetail with the facts.

Writing a persuasive factum is just one of the many challenges that a self-represented party may struggle with. Unfortunately, it is seldom practical to hire a lawyer just to write the factum, since writing it requires a detailed knowledge of the details and history of the case. Paying a lawyer to come up to speed to do the writing may cost almost as much as hiring a lawyer to represent you from the beginning.

Just because you CAN represent yourself does not mean that you  SHOULD. As we have said before, you might try your own plumbing repairs, but would you try brain surgery? As factums illustrate, law is more like brain surgery than plumbing.

So this article turns out to be another example of why being self-represented in a civil case in Superior Court, or on an appeal, is a huge disadvantage. Though the court publishes guides for self-represented parties, they cannot teach you all that a lawyer learns by doing, first as a student, then as a junior lawyer, and finally putting their own name on a factum.

At Weilers LLP. We have a team of students and junior and senior lawyers who work with skilled staff to write effective factums. If your case is important enough to deserve that care, give us a call and see if we are the right lawyers for you.