The 4th Circuit Bids Farewell to the Separate Statement of Facts

By Jonathan Biran

The Fourth Circuit recently gave notice of its amendment to Local Rule 28(f) in order to conform to amendments to Federal Rule of Appellate Procedure 28. The amendments to the federal rule eliminate the Statement of Facts as a separate section of a federal appellate brief. Of course, the Fourth Circuit isn’t doing away with a recitation of the facts, it is just following the new federal rule, under which the Statement of the Case and the Statement of Facts are now consolidated into one section of the brief that is to provide a “concise statement of the case setting out the facts relevant to the issues submitted for review, describing the relevant procedural history, and identifying the rulings presented for review, with appropriate references to the record.” Given these changes to Fed. R. App. P. 28, the Fourth Circuit is amending its Local Rule 28(f) to eliminate the reference to the Statement of Facts and to describe the factual statement to be included by counsel in the statement of the case. Specifically, the local rule now requires that the Statement of the Case “include a narrative statement of all of the facts necessary for the Court to reach the conclusion which the brief desires, with references to the specific pages in the appendix that support each of the facts stated.”

Prior to this rule change, many Fourth Circuit practitioners (including me) would begin their briefs with a thoroughly uninteresting Jurisdictional Statement, followed by a barebones Statement of the Case that provided a recitation of the key procedural history in the case. This was then followed by the much meatier Statement of Facts. But often it was difficult not to repeat at least some of the important parts of the procedural history that had been recited in the Statement of the Case when providing the Statement of the Facts. And, worse, this structure made for an uninspiring beginning of the brief, as the first two sections did nothing to grab the reader. (Sometimes, if I just couldn’t handle such a lackluster start, I would include a Preliminary Statement at the very beginning of the brief, prior to the Jurisdictional Statement, in which I would summarize in one paragraph what the appeal was about from my perspective. But given that there is no Preliminary Statement called for in either Fed. R. App. 28 or Local Rule 28(f), I was always a little worried that a judge might view a non-sanctioned Preliminary Statement as grandstanding.)

With the rule change, there is now just a Statement of the Case, which should eliminate the need for any redundancy in reciting the procedural history. I expect that in my new Statement of the Case, I’ll usually include subheadings to provide lines of demarcation between the facts (which will usually come first) and the procedural history.

The Fourth Circuit invited interested parties to submit comments on the proposed change to the Local Rule 28(f) on or before January 15, 2014. However, the rule change went into effect immediately. So even if any interested parties do complain to the Court about no longer being able to include a separate Statement of Facts in their briefs, the die has pretty much been cast by the change to the federal rule.