Dear Legal Writer: Stop writing “the court found”!
“Find” and “hold” mean very different things.
▪️ “Find” refers to determining facts—what actually happened. This is the job of a fact-finder (a jury, or sometimes a judge in a bench trial or preliminary hearing).
▪️ “Hold” refers to a legal conclusion—a court’s determination of what the law means or what the law requires, given the facts.
So:
✔️ When a jury decides what facts actually happened, the jury “finds.”
✔️ When a court decides what the law means or what it requires, the court “holds.”
WHAT THIS MEANS IN AN APPELLATE BRIEF:
Appellate courts don’t usually make factual findings.*
Appellate courts review the factual findings made below and decide whether those findings are supported under the applicable standard of review.
👉 So don’t use “find” to describe what an appellate court does.
WHAT THIS MEANS IN A SUMMARY JUDGMENT BRIEF:
When a trial court decides whether an alleged set of facts meets the legal threshold for purposes of Rule 56, the court is making a legal conclusion, not a factual finding.
👉 So don’t use “find.” The best alternatives are:
decided
concluded
determined
ruled
held**
Please let me know what questions you may have.
(The find-hold distinction is one that trips up a lot of folks.)
💌 Amanda
#DearLegalWriter
#Dear1L
♦️ ADVANCED NOTES FOR PRACTITIONERS:
*N.B. 1:
Certain uncommon situations call for an appellate court to make or modify findings of fact—for example, when a rule or statute expressly authorizes it, or when the case is in a posture where the appellate court is acting in a quasi-trial capacity (such as certain equity proceedings or administrative-review regimes).
But even there, the better practice is to avoid writing that the appellate court “found” anything.
**N.B. 2:
A school of thought exists that trial courts don’t make “holdings.” I agree with that analytically, given that trial court decisions are not precedential except to the parties before the court.
Nevertheless, I have used the verb “hold” to describe trial courts’ conclusions of law, and doing so has become standard practice generally, in my experience.
📬 What’s your view on using “hold” for a trial court’s conclusions of law?