Until January 1 of this year, Uniform Rule 2-12.4 required the appellant’s brief to include “a concise statement of the case,” which most lawyers used to describe both the procedural history and the facts. Effective this year, Rule 2-12.4(A) requires the statement of the case to be separate from the statement of facts:
The brief othe appellant shall contain, under appropriate headings and in the order indicated:
(4) a concise statement of the case indicating the nature of the case, the action of the trial court and the disposition;
(7) a statement of facts relevant to the assignments of error and issues for review, with references to the specific page number of the record ....
Ironically, Fed. R. App. P. 28, governing briefs in federal courts of appeals, was recently amended to make the opposite change. Under the former rule, the statement of the case was separate from the statement of facts. Under the newly amended rule, federal appellate briefs are to include one statement of the case, which should include both the procedural history and the facts. Why bring this up? Because commentary on the former version of Fed. R. App. P. 28 offers guidance to Louisiana appellate practitioners for writing a separate statement of the case.
The new version of Unif. R. 2-12.4(A)(4) itself instructs that the statement of the case should “indicat[e] the nature of the case, the action of the trial court and the disposition ...." This accords with the purpose of the statement of the case under former Fed. R. App. P. 28. The 1998 comments under former Rule 28 explained the distinction between the statement of the case and the statement of facts:
The current rule requires a brief to include a statement of the case which includes a description of the nature of the case, the course of proceedings, the disposition of the case—all of which might be described as the procedural history—as well as a statement of the facts. The amendments separate this into two statements; one procedural, called the statement of the case; and one factual, called the statement of facts....
In his book Winning on Appeal § 9.1 (Rev. 1st ed.), Judge Ruggero Aldisert offered these tips for writing the statement of the case:
A succinct statement of the case in your brief tells the appellate court “how you got here.” In this portion of the brief you verify the procedural history of the case by answering these questions:
- Who: Who won in the trial court? Who is taking the appeal?
- What: What is the general area of law implicated in the appeal, and what specifically are the issues?
- Where: Where has the case been so far? A trial court, administrative agency or intermediate court?
- When: When was the alleged error committed? During the pre-trial, trial or post-trial stage?
- How: How was the case resolved? By summary judgment, a directed verdict, a jury verdict or a nonjury award?
In an article recently published on Law360, Matthew J. Dowd explains the “old” Rule 28 statement of the case:
The primary purpose of the old statement of the case was to provide a concise summary of the procedural history of the case. The statement of the case would quickly explain how the case reached the appeals court. This summary, in turn, could inform the judges and clerks about numerous aspects of the case, including whether the appeal concerned a final judgment or an interlocutory order, whether the decision being appealed was one of summary judgment or after a full trial, and wehther the trial was a bench trial or a jury trial. From this, using their internal knowledge, the judges and clerks could readily discern, for example, the basis for jurisdiction and the proper standard of review.
Matthew J. Dowd, How to Take Advantage of New Fed. Circ. Brief Structure (Law360 Jan. 8, 2014).