Drafting Findings of Fact and Conclusions of Law
Finding of facts and conclusions of law are two general entities of the results of a litigation. Finding of facts are exclusive determinations by the court or the jury, directed to the facts and circumstances of the case. Conclusions of law are interpretations of statutory and common law by the court and are applied to the finding of facts. A finding of fact is an answer by the court or the jury to a resolution of the issues of fact in the case. A conclusion of law is a legal basis for the case. Included in these categories of finding of facts and conclusions of law, there are also conclusions of fact. This is simply a conclusion of fact drawn from the conclusion of law.
Whether the law applies to a set of facts is a conclusion of law. Making the facts into what the court calls a finding of fact or a conclusion of law is a normal part of a judge’s duties. In a non-jury trial, the judge will provide the finding of fact and conclusion of law if the parties do not. In a jury trial, the jury will make the finding of fact and the judge will apply the law to the jury’s finding of fact to create a conclusion of law and judgment. On motion for summary judgment, the court will enter the finding of fact and conclusion of law based upon the affidavits and discovery issues presented by the motion. Whether or not there are contested issues of fact may be a matter of opinion , but are not issues of law.
Attorneys should understand the differences between finding of fact and conclusion of law, how they are properly made or presented in a jury or a non-jury trial, and why they are important and necessary. The parties to a lawsuit may request the judge to provide finding of fact and conclusion of law as a normal part of the trial preparation. Often this will involve a discussion with each attorney to prepare them in proper format. Generally, a basic format is needed, and then it will be a matter of filling in the blanks. With finding of fact and conclusion of law, it is a matter of judgment on the part of the attorney as to what should be included. The judge will not normally provide a policy opinion or strategy on how to present finding of fact and conclusion of law.
Finding of fact and conclusion of law are often filed with the post-trial matters. Post-trial matters may include motions for new trials and motion to enter the judgment on the pleadings, motions for judgment not withstanding the verdict (JNOV) and motions regarding the sufficiency of the evidence; conclusions of law, proposed judgment, proposed findings of fact, and certifications under Rule 11.2 and 28.6, which are concerning the findings of fact and conclusions of law.
Particular Importance of Clarity and Precision
The necessity for clear and precise language in proposed findings of fact and conclusions of law cannot be overstated. These documents are the final opportunity to describe what the evidence at trial proved, and how the application of the law to those facts leads to the outcome of the case. Careful drafting is required to avoid burying critical legal principles in a sea of artful catch-phrases and platitudes. A well-articulated statement of the law and the application of that law to the facts proved at trial is much more likely to influence the trial court judge to adopt the proposed findings than aerating the document with rhetorical flourish. This is certainly not to say that stylistic flair has no place in a proposed finding of fact and conclusions of law — indeed, finely-crafted recitations of applicable constitutional principles or statutory provisions imbued with a sense of narrative can leave a lasting impact on the reviewing judge. But the risk of major evidentiary overstatements due to the rhetorical flourish in their telling must almost always be considered.
Proposed Findings of Fact – A Sample
To illustrate how proposed findings can be structured, consider first the following basic sample proposed finding of fact that one might postulate in a motion to set aside a previous order of child support:
12. The Child Support Guidelines in effect as of the date of this Order would have required the Parent in Control of Resident to pay child support in the amount and according to the schedule attached hereto as Exhibit A.
12. The Parent in Control of Resident is unable to pay that child support based on the following:
a. The Parent in Control of Resident received financial support from the US Government for four years until he/she turned 19, at which time support from the US Government stopped;
b. The Parent in Control of Resident has not obtained that same support from the US Government since the day after he/she turned 19;
c. The Parent in Control of Resident has experienced difficulty in his/her work schedule as a typical US citizen because it is difficult for the Parent in Control of Resident to accept employment/income without a birth certificate or Social Security card.
The basic structure of each paragraph in this example is to start with a definitive statement of an outline fact (18). Then, follow that with a listing of support for the outline fact, which is broken down into sub-parts (b), (c) and (d). This style is useful because it presents evidence and argument in a logical manner that’s easy to follow.
Here are some additional tips to keep in mind when crafting proposed findings of facts and conclusions of law, in general:
• When possible, try to generalize proposed findings, even if they are not overwhelming supportive of the party submitting them, for the sake of brevity, efficiency, and simplicity.
• Avoid specific facts unless there is no other way to convey a clear meaning about the situation in question.
• If a specific fact is necessary, number them in a logical order so a fact-finder knows where to look when researching for a specific item of proof.
• Aim for objectivity in both proposed findings and conclusions of law from the beginning to avoid debate on what is "in evidence" and what is not.
• Present proposed findings as a group of factual links that build in logical connection to reach a decision.
Proposed Conclusions of Law – A Sample
In most proposed findings of fact and conclusions of law, you will adopt an element of either a legal framework or the decision in a case provided to you by your client. This will provide the legal basis for your conclusions of law. You can then cite the law or case and summarize the application of the law to the facts in a fashion similar to that made in the case.
If the conclusions of law in a case incorporate a legal framework, you may wish to quote the entire framework in your proposed finding. For example, if you are proposing to strike all of the deposition testimony at trial given by a non-testifying physician under Texas Rules of Evidence, Rule 703, you may wish to propose to the judge the following conclusions of law concerning the admissibility of that evidence:
Conclusion of Law
A. Introduction
1. Pursuant to Rule 705 of the Texas Rules of Evidence, the Court should take judicial notice of the Federal Rules of Evidence in effect as of the date of trial of this matter.
B. Expert Testimony and Opinion
2. Rule 703 of the Federal Rules of Evidence governs expert testimony and permits reliance on inadmissible evidence.
3. The Federal Rules of Evidence are silent as to the admissibility of opinion evidence from a non-testifying witness. The case law developed in Texas is instructive, but does not provide controlling authority.
C. Texas Case Law
4. In In re Commitment of McLeroy, 271 S.W.3d 80 (Tex. Ct. App.—Waco, 2008, no pet.), the Federal Rules of Evidence were applied to a proceeding under the Texas sex offender civil commitment statute, Tex. Health & Safety Code Ann. Ch. 841 (Vernon 1997). The Court determined that the legislation was silent as to the admissibility of opinion testimony. Consequently, the Court applied the Federal Rules of Evidence.
D. Texas Case Distinguishes McLeroy
5. In re Commitment of Ramsey, 313 S.W.3d 160 (Tex. Ct. App.—Waco 2010, no pet.), the Court distinguished McLeroy and denied the application of the federal rules to a sex offender civil commitment proceeding.
E. Conclusion Probative Value Not Outweighed by Prejudicial Effect
6. For the evidence to be admissible, the probative value of the opinion evidence must not be substantially outweighed by other factors which can include a consideration of the danger of unfair prejudice, confusion of the issues, or misleading the jury. In Texas State Bank v. Brooks, a doctor rendered an opinion that the plaintiff’s injury was medically significant. 273 S.W.3d 444 (Tex. 2008). The Supreme Court of Texas held that the cost of unfair prejudice associated with allowing the doctor’s opinion to be submitted to the jury did not substantially outweigh its probative value. Partially quoting and citing McLeroy, supra, the Court held that "laypersons cannot assess the significance of a closed head injury, and expert testimony is helpful."
F. Conclusion Conclusions of Law Not Rendered Due To Lack of Supporting Testimony
7. This court should determine whether the above conclusions of law may be drawn without additional expert testimony.
a. Should the court determine that the above conclusions of law may be made, the conclusions should be discussed and argument for or against them addressed by the parties in their respective briefing. (citations omitted)
b. Should the court determine that the above conclusions of law may not be made without additional expert testimony, the conclusions would not be drawn.
Common Errors
Navigating the legal process requires that an attorney be the eyes and ears of a Judge when a matter is heard without a jury. The Judge is looking to decide the among competing factions in a case. Oftentimes, the parties have appeared before the trial court several times. In other cases, a trial may simply be the only opportunity to present evidence to a tier of fact. In any event, a succinct proposed finding of fact and conclusions of law can keep a Judge’s attention focused on your argument(s). Here are some of the most common pitfalls when preparing proposed findings of facts and conclusions of law:
Too Wordy. Far too many proposed findings of fact and conclusions of law recite statutory authority. Giving legal authority for a finding of fact and/or conclusion of law is often a waste of time. If the authority cited did not come from a source that the Judge is familiar with, you may have just wasted valuable time (and gave the Judge another reason to discount your argument by looking for a justification/interpreting your sentence as you failed to find authority.) In sum, do not waste space in your document reciting cases, amendments to code sections, etc. The Judge has already read your pleadings, he/she has heard your evidence, and you have one opportunity to convince them. Use your words cannonball, not birdshot. In rare instances, reciting some authority can make the difference in winning over a Judge.
Inconsistencies and Contradictions. No argument (no proposed finding of fact/conclusion of law) is perfect. There are times when presenting two sides of an argument, both without precedent, but with some authority and anatomies to support those arguments is better than having continued focus on one side without precedent or court authority. A Judge worth their salt recognizes that arguments can be made on both sides. That said, if you are going to make both sides of an argument in your proposed findings of fact and conclusions of law, make sure you use the same paragraph structure, the same focus on counterparty behavior , the same approach for each party. One of my favorite examples of attorneys "shooting themselves in the foot" post trial is when they argue about the defendant’s actions on a breach of fiduciary duty by citing once-esteemed authority (law review articles) and then try to focus solely on the plaintiff’s conduct elsewhere to make their argument. Do not give the trial court a reason to discredit your client by arguing that your opposing party’s actions were based on un-restrained self-interest and providing what you consider similar actions/behavior by your client.
Overwhelming the Judge’s Clerk. I cannot tell you how many times I have been in the courtroom and heard the Judge say "I like well written proposed findings of fact and conclusions of law." Let me present a recent situation. Proposed Findings of Fact and Conclusions of Law had 307 paragraphs (yes, 307 paragraphs). You are probably thinking to yourself, "there is no way possible to get 307 paragraphs on a simple family law matter/contractual matter!" You are correct, there was not enough facts in that case for 307 paragraphs. Taking away the case law and repeating the Plaintiffs request for relief, there may have been 50 paragraphs. When given a document with 300 paragraphs, the first thing a Judge’s law clerk does is pick up the phone and call the attorney asking for direction. I have never seen a law clerk call in favor of the defendant (that means the law clerk is not happy with you.) A law clerk will also often translate 1 paragraph into 3-5 and then drop the proposed findings on the Judge’s desk. Believe me, you do not need to make your argument longer, you need to make your argument (regardless of position) as short/brief as possible.
Trying to Draft While on your Feet. It is almost impossible to draft dispositive proposed findings of fact and conclusions of law for a judge while you are on your feet. You can try to take notes, but you miss arguments and lose parts of your own arguments. You lose flow and you do not have a thorough understanding of all the facts. If you are appearing pro se, and you are getting the impression that the Judge wants you to file proposed findings of fact and conclusions of law quickly, make a record of that statement made in Court. Once you have it in the record, you have created an opportunity on the record to ask for an extension of time to file your proposed findings of fact and conclusions of law. A good starting point is 30 days from entry of the order/judgment. The best part about those 30 days is that you have control, whereas, there is nothing you can do to control when an Order/Opinion is entered.
Examples and Samples
Example 1: Proposed Findings of Fact
- The minor child ("Child") is the biological child of Father and Mother.
- Father has established paternity.
- Father has a stable home that can safely support Child.
- Mother has a clean criminal record, is employed and has demonstrated financial and parent stability.
- While at a bar with friends, Father asked Child to perform a task. Child complied. Father ceased contact with Child immediately thereafter.
- Mother’s family resides in proximity to Father’s home.
Why This Is Effective: The Proposed Findings of Fact are brief, well-organized, and follow a logical sequence. A judge will recognize that the Findings are divided between general and specific ("ultimate" and "subsidiary") Findings. Proposed Conclusions of Law are included only when they are necessary and enhance understanding, and they are similar in scope to Proposed Findings of Fact. The style is clear, concise, and based upon specific facts.
Example 2: Proposed Conclusions of Law
- It is within the Court’s discretion to issue and enforce orders regarding the issues at bar.
- The minor child of the parties has resided in the State of Florida for the requisite period of time to establish jurisdiction within the State of Florida.
- The Proposed Findings of Fact support the proposed Conclusions of Law.
Why This Is Effective: Providing Proposed Conclusions of Law improves the document’s clarity and brevity. They also afford the judge the chance to grant relief, even if the judge finds certain facts insufficient to do so. If the Findings of Fact are contested, the Conclusions of Law will assist in resolving the motion at issue.
Revisions and Final Drafts – Suggestions
Once an initial draft of proposed findings and conclusions has been completed, serious consideration should be given to the process for revising and finalizing the draft.
Editing is an important part of the revision process. It allows a lawyer to gain distance on and objectivity about a draft. For the initial review, it is often helpful for a lawyer to set the draft aside for a day or so before beginning to edit. Some lawyers recommend that different types of editing be done separately, i.e., working on fundamental points before spending time on the cosmetic aspects of the writing.
When editing a draft of proposed findings and conclusions: When editing is complete, one or two peer reviews are almost always helpful. This may be done by one or two other lawyers , a paralegal, or a legal assistant. A peer reviewer will often catch errors that may have gone undetected. It may also be helpful to have a non-lawyer review work product. A non-lawyer can disclose points that may be confusing or unclear to someone who does not have the frame of reference of an attorney.
During the final review, the lawyer should read through the entire document from beginning to end, making sure that the proposed findings and conclusions are easy for the trier of fact to follow and understand. For this review, an attorney should ask himself or herself the following questions:
Answers to these questions have a direct bearing on the persuasiveness of the proposed findings and conclusions.