The Facts Are Not Neutral

By Ron Park, Friedman | Rubin, PLLP

This article was reposted from the February 2023 issue of Trial News, the monthly newspaper of the Washington State Association for Justice.
https://www.trialnewsonline.org/trialnews/library/item/february_2023

Several years ago, I read two opinions concerning the constitutionality of an injunction that enjoined individuals from participating in or encouraging parades without a permit. The opinions stuck with me for two reasons. One reason was the facts in the two opinions. In one opinion, the facts were as follows: (Note: the opinions were written in the 1960s and so contain language that would be considered inappropriate today.)

The next afternoon, Good Friday, a large crowd gathered in the vicinity of Sixteenth Street and Sixth Avenue North in Birmingham. A group of about 50 or 60 proceeded to parade along the sidewalk while a crowd of 1,000 to 1,500 onlookers stood by, “clapping, and hollering, and (w) hooping.” Some of the crowd followed the marchers and spilled out into the street. At least three of the petitioners participated in this march.

On Easter Sunday, April 14, a crowd of between 1,500 and 2,000 people congregated in the midafternoon in the vicinity of Seventh Avenue and Eleventh Street North in Birmingham. One of the petitioners was seen organizing members of the crowd in formation. A group of about 50, headed by three other petitioners, started down the sidewalk two abreast. At least one other petitioner was among the marchers. Some 300 or 400 people from among the onlookers followed in a crowd that occupied the entire width of the street and overflowed onto the sidewalks. Violence occurred. Members of the crowd threw rocks that injured a newspaperman and damaged a police motorcycle.

In the other opinion, the facts were the same in some respects, but also very different:

On April 12, Good Friday, a planned march took place, beginning at a church in the Negro section of the city and continuing to city hall. The police, who were notified in advance by one of the petitioners of the time and route of the march, blocked the streets to traffic in the area of the church and excluded white persons from the Negro area. Approximately 50 persons marched, led by three petitioners, Martin Luther King, Ralph Abernathy, and Shuttlesworth. A large crowd of Negro onlookers which had gathered outside the church remained separate from the procession. A few blocks from the church the police stopped the procession and arrested, and jailed, most of the marchers, including the three leaders.

On Easter Sunday another planned demonstration was conducted. The police again were given advance notice, and again blocked the streets to traffic and white persons in the vicinity of the church. Several hundred persons were assembled at the church. Approximately 50 persons who emerged from the church began walking peaceably. Several blocks from the church the procession was stopped, as on Good Friday, and about 20 persons, including five petitioners, were arrested. The participants in both parades were in every way orderly; the only episode of violence, according [to] a police inspector, was rock throwing by three onlookers on Easter Sunday, after petitioners were arrested; the three rock throwers were immediately taken into custody by the police.

If you haven’t guessed already, the reason these opinions stuck with me is that the facts are describing the same case: Walker v. City of Birmingham, 388 U.S. 307 (1967). One set of facts was written in the majority opinion, and the other was written in a dissenting opinion.¹ It’s one thing for judicial opinions to disagree on the interpretation of the law. But aren’t the facts supposed to be the facts? Sure, the lawyers may have put their spin on the facts in the briefs, but isn’t there supposed to be the “neutral” statement of facts upon which the law is to be applied? Yet here we have two “neutral” statements of what had happened.

Each fact statement, considered alone, appears to be a reasonably neutral statement. Of course, the opinions are from the 1960s, and there’s certain language there that would not be acceptable in any legal writing today, but if you had seen only one of these fact statements rather than both, would either one have struck you as obviously slanted or biased?

The statements agree on many points. They agree that marches took place in Birmingham, Alabama on Good Friday and Easter. There was a large crowd of people gathered on both dates, although only about 50 were marchers and the others were onlookers. Several participants, including the petitioners, were arrested. At the end of the second march, some people threw rocks.

More remarkably, the statements don’t disagree with one another on the points where they diverge. In fact, neither opinion says that any of the facts stated in the other is wrong, false, or exaggerated. There does not appear to be any dispute that the onlookers numbered from 1,000 to 2,000, that they were making a lot of noise, and they filled the street and sidewalks. There does not appear to be any dispute that the rocks thrown injured a person and damaged a vehicle.

There also does not appear to be any dispute that the marches were planned, that the police had been given advance notice of the marches by one of the marchers, and that the police were therefore able to block the streets to traffic along the marchers’ route. There is also no dispute that the march began at a church in a Black neighborhood, that the marchers themselves walked peacefully at all times, that the rocks had been thrown by onlookers, and that was the only episode of violence across the two days.

Neither statement appears to be false. Yet, read together, they clearly convey very different impressions of the event and paint a very different picture in the mind of the reader of what happened. You could probably accurately guess which way each opinion came out on the legal question before the Court without reading any other part of the opinion.

Which gets to the title of this article: the facts are not neutral. This should be obvious once you give it some thought. Our evidence rules allow only the admission of “relevant” facts at trial. What’s a relevant fact? One that has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”² By this definition, relevant facts can’t be neutral. They have a tendency to either help or hurt your case! It’s the same in summary judgment proceedings. A “material” fact is a fact “upon which the outcome of the litigation depends, in whole or in part.”³ Again, by definition, material facts can’t be neutral if the outcome of the case depends on what those facts are.

But even when facts are not directly determinative of a legal issue, they can still drive an outcome one way or another. Does the constitutionality of an injunction enjoining parades on public streets without a permit depend on how orderly and peaceful any particular parade is? Despite the detail both opinions give about what happened during the marches, the conclusion of both opinions don’t turn on those details. Ultimately, the majority’s holding turned on what it considered to be the failure of the petitioners to make “any previous effort on their part to have the injunction dissolved or modified, or any attempt to secure a parade permit in accordance with its terms.”⁴

Then why spend so much time describing what the marches were like? Perhaps because even judges, like any other human being, can be drawn to certain conclusions based on what they perceive to be the truth of what happened on a particular day. Perhaps because judicial opinions are not just a court’s interpretation of a legal issue and application of the law to the facts, they are also explanations to the public for why the court ruled a certain way in a particular case. Jurors may be able to just fill out a verdict form, but judges have to explain and justify their decisions.

Which is to say that careful drafting of a fact statement in a motion or a brief can go a long way to persuading a judge to rule in your favor. That isn’t to say that the law doesn’t matter. You will need case law and other legal authority to support your points, but lawyers often get overly focused on finding the right case or cases to win the day for them. A powerful fact statement can often communicate what the proper ruling should be. As much as law school professors delighted in telling you all the ways in which the law does not lead to what we’d think are fair or just outcomes, most of us (including judges), in our heart of hearts desire the legal system to produce not just legally correct results, but fair and just ones.

A powerful fact statement doesn’t require embellishment or editorializing. Giving thought to the story you want to tell and just stating the facts that tell that story is often more than enough. The excerpts I quoted above do just that. Given the historical context of the Walker case, it may be difficult to disentangle that context from the excerpts themselves, but each one tells a story, and in telling that story each one silently calls you to draw certain conclusions about what happened, the people involved, and who was in the right or wrong. Many times, that silent call is more persuasive than anything we say out loud.

Ron Park, EAGLE member, is an associate at Friedman | Rubin PLLP in Seattle.

¹ These aren’t the only facts in the case, but I chose to excerpt these parts because of the stark contrast in describing the same events.
² ER 401.
³ Morris v. McNicol, 83 Wn.2d 491, 494, 519 P.2d 7 (1974).
⁴ Walker, 388 U.S. at 315.