Committee for Public Counsel Services

Committee for Public Counsel Services

Children and Family Law Division

44 Bromfield Street, Boston, MA 02108, Phone: (617) 482-6212; Fax: (617) 988-8455

Memorandum

TO: CAFL Appellate Panel Members

FROM: Andrew Cohen, CAFL Director of Appeals

DATE: July 2013

RE: The “Facts” Section at the Paragraph Level– Spicing it up, and Dealing with Bad Facts

A good Introduction sets the theme. And a well-organized story is an essential frame to hang your legal arguments on. But what really makes your Facts section effective is crafting strong individual paragraphs that hold the reader’s eye and move the story along crisply.

Spice Up Your Paragraphs

Here are a few techniques for spicing up each paragraph:

Active v. passive voice

Instead of this:

Parenting classes were not provided by DCF to Mother until six weeks before trial.

Try this:

DCF failed to provide Mother with parenting classes until six weeks before trial.

Use passive only when you are trying to distance your client from an act (“The child was struck by mother three times on the cheek.”) or the actor doesn’t matter or is unknown (“The needle was found in the crib near the baby’s head.”).

Active v. “hidden”verb

Some perfectly good verbs are buried in vague nouns. Action verbs quicken the pace of your writing.

Instead of this:

The social worker had knowledge that Mother was seeing the children at her cousin’s house, and made no complaint about it.

Try this:

The social worker knew that Mother was seeing the children at her cousin’s house and never complained about it.

Instead of this:

DCF made allegations that Mother used heroin and was therefore in violation of her probation.

Try this:

DCF alleged that Mother used heroin and therefore violated her probation.

Short paragraphs, short sentences

No paragraph should be longer than a page. Most page-long paragraphs should be broken into two or three (or more) smaller ones. A single-sentence paragraph is fine for dramatic effect; just don’t use too many of them.

Long sentences try the reader’s patience. If a sentence is so long it’s hard to find the verb, break it into two or three sentences. It’s important to vary sentence length, but when in doubt, go for short.

Use bullet points for lists

Most of our briefs include lists of services offered to parents or undertaken by parents. Some of our briefs include a list of conditions of custody. Bullet points are a great way to make such lists easier to read.

Instead of:

The June 2013 DCF service plan required that Mother attend parenting classes, participate in a psychological evaluation and follow through with recommendations, attend domestic violence counseling and follow through with recommendations, draft a budget of all monthly expenses, visit with Juan and Maria once each week at the DCF office, participate in therapy, and sign releases for all therapy providers. (RA. 234). Mother fulfilled all of her service plan tasks before trial. (Tr. 23; RA. 445).

Try this:

The June 2013 DCF service plan required that Mother:

attend parenting classes;
participate in a psychological evaluation and follow through with recommendations;
attend domestic violence counseling and follow through with recommendations;
draft a budget of all monthly expenses;
visit with Juan and Maria once each week at the DCF office;
participate in therapy; and
sign releases for all therapy providers.

Mother fulfilled all of these requirements before trial. (Tr. 23; RA. 445).

The bullet-point list is much easier to read than a thick paragraph.

Embrace “But” and “And” as sentence-starters

It’s okay to start a sentence with “But,” “Or,” or “And.” They shorten sentences and add drama.

Instead of this:

The DCF social worker promised Mother that if she attended domestic violence counseling and regularly took her medication, Kim would be returned to her. DCF did not, however, return Kim to Mother.

Try this:

The DCF social worker promised Mother that if she attended domestic violence counseling and regularly took her medication, DCF would return Kim to her. But DCF reneged on this promise.

Instead of this:

Six weeks before trial, Mother told the social worker that she would enter therapy and take all of her medications. She did, in fact, follow through with that promise.

Try this:

Six weeks before trial, Mother told the social worker that she would enter therapy and take all of her medications. And she followed through with that promise.

Use quotes

Which is more effective?

On June 5, 2013, after a visit, mother threatened the DCF social worker at the DCF office. She was escorted out by police. She also threatened and insulted the officer. The children overheard these threats.

“You’re a stupid pig and I’m going to kill you!” mother yelled at her DCF social worker after a visit on June 5, 2013. As a police officer escorted her out of the building, she yelled at him, “And you’re an even bigger a**hole, and I’ll kill you, too!” The children overheard these threats

Which is more effective?

During voir dire, the four-year-old child’s answers suggested she might not be competent. The judge nevertheless deemed her competent and allowed DCF to question her about the fight between mother and father.

Father questioned the four-year-old child’s competency at a voir dire:

Father’s Counsel: What color is my tie?

Child:I don’t know.

Father’s Counsel:How old are you?

Child:Six.

Father’s Counsel:Sarah, it is possible that you’re only four?

Child:I don’t know.

The judge nevertheless deemed her competent and allowed DCF to question her about the fight between mother and father.

It’s always better to show the Appeals Court judges than to tell them. Quotes are a great way to show.

Dealing with Bad Facts

Your story has some bad facts? Of course it does; after all, your appellant-client lost at trial, so there are probably plenty of bad facts. And even if your client won at trial, there are probably some “bad” facts that suggest the case was closer than you would like.

You must address bad facts, but you can minimize their negative impact. Here are some techniques:

Pair bad fact with good fact

For example: Although Mother stopped seeing her psychiatrist four months before trial, she regularly took all of her medication and regularly attended her therapy appointments.

“Hide” the bad fact in the middle of a paragraph.

We remember the first and last things we read in a paragraph and a sentence. We tend to forget what’s in the middle. Faithfully include the bad stuff, but bury it where it’s harder to see and easier to forget.

Summarizing multiple bad events

While you must address the bad stuff, no rule requires that you go into gory detail.

If you represent the mother, instead of this:

On March 3, 2012, a mandated reporter filed a § 51A report with DCF alleging that mother brought Kim to daycare looking unwashed. (RA. 23). On March 23, 2012, another mandated reporter filed a 51A with DCF alleging that mother brought Kim to the doctor's office hungry and smelling like she hadn’t been bathed in a month. (RA. 34). On April 1, 2012, a non-mandated reporter filed a 51A with DCF alleging that mother has been selling drugs out of her apartment and strange men have been passing in and out of the apartment. (RA. 56).

Try this:

Between March 3 and April 1, 2012, three reports were filed against mother alleging neglect of Kim. (RA. 23, 34, 56).

If you represent an appellee-child, you will probably want to discuss each 51A in details (if they were supported).

Generalizing a single bad event

If you represent the mother, instead of this:

On March 5, 2012, witnesses reported that mother and her boyfriend were screaming at each other on the sidewalk in front of the apartment. (Tr. 23; RA. 77). The screaming then continued up the stairs and into the apartment. (Tr. 24; RA. 77). Other neighbors overheard mother yelling at her boyfriend through the open widows, and they reported that they feared for mother’s safety. (Tr. 24; RA. 77). One of them called the police. The police came, and the boyfriend was removed from the apartment in handcuffs. (Tr. 25; RA. 77).

Try this:

In March 2012, mother and her boyfriend were overheard yelling at each other. (Tr. 23; RA. 77). Although no one was harmed, the boyfriend was arrested. (Tr. 25; RA. 77).

Of course, if you represent an appellee-child, you’ll want to discuss a bad incident in some depth.