The Supremacy of Facts in Appeals

Fort Worth, Texas – Peter Smythe © 2019

Fort Worth, Texas – Peter Smythe © 2019

All too often I receive a call from a potential appellate client who wants me to make a judgment call on his appeal over the telephone. I imagine that I lose a lot of appellate business on these calls because I try to explain how impossible it is to play armchair quarterback without knowing the facts of the case. Below are a few quotes that demonstrate the truth that, even with appeals, the facts remain supreme.

It may sound paradoxical, but most contentions of law are won or lost on the facts. The facts often incline a judge to one side or the other. A large part of the time of conference is given to discussion of facts, to determine under what rule of law they fall. Dissents are not usually rooted in disagreement as to a rule of law but as to whether the facts warrant its application. —Hon. Robert H. Jackson, Advocacy Before the Supreme Court: Suggestions for Effective Case Presentations, 37 ABA J. 801, 803 (Nov. 1951).

The maxim frequently repeated by Judge Tuley, one of the greatest trial judges that ever sat in the courts of Chicago, was, "Out of the facts springs the law." It is a maxim that cannot be kept too steadily in view by all lawyers in the preparation of briefs. —Hon. Orrin N. Carter, "Preparation and Presentation of Cases in Courts of Review" (1917), in Advocacy and the King's English 296, 298 (George Rossman ed., 1960).

[A]s is so often true of legal problems, the correct result depends upon how to give the facts the right order of importance. —Coughlin v. Commissioner of Internal Revenue, 203 F.2d 307, 308 (2d Cir. 1953) (per Chase, J.).