F. Factums

• Author: Ted Tjaden
• Profession: National Director of Knowledge Management McMillan LLP
• Pages: 347-349

Page 347

Factums - or facta for the Latin perfectionists - are written arguments or briefs filed in court to advocate a client’s legal position before the court. There are technical requirements prescribed by the rules of court for most jurisdictions regarding the length, content, and format of factums. In law school, law students are usually required to participate in a moot court hearing - a mock appeal-level hearing - and as part of this process are required to prepare and file factums. Moot court factum requirements are often prescribed specifically by the law school but often mirror "real life" factums.

Much has already been written about in the legal literature regarding factum preparation (see the resources listed in Section I, below in this chapter), so what follows in this section is nothing more than a simple overview of tips for drafting effective court factums. Readers needing

Page 348

more details should consult the resources at the end of this chapter and any specific court rule requirements of the applicable jurisdiction.

The following pointers apply to most factums, regardless of jurisdiction or level of court; ultimately, one must always check specific requirements before preparing and filing a factum:

· What is a factum? A factum is a concise statement, without argument, of the facts and law a party relies upon in an argument before the court.⁵The style of factums in Canada is regarded as a hybrid of the British and American legal practice. The British practice tends to emphasize oral advocacy over written advocacy, such that barristers in England ordinarily only use written "skeletal arguments" on appeal matters, which tend to be only general outlines of their position, requiring instead that they rely upon their oral advocacy. The American practice, however, is to emphasize written argument, since on many applications, counsel may not even be called upon to make submissions or may be under strict time limitations for oral argument. The court will instead rely upon written material (sometimes called a "Brandeis brief") filed in advance of the hearing to make their ruling. In Canada, factums are not usually as detailed as the American approach and are often meant as an outline of counsel’s position on the facts and the law. Remaining concise is still very important in Canada, no matter how complicated the issues may be.

· Structure: Typical factum requirements suggest an outline or structure that divides the written...