Like the chicken and egg, it can sometimes be a thorny question. If you have a lot of “good” facts on your side, you might want to jump right into the Statement of Facts, putting the issues off until you reach the Argument section of your brief. Bur if you have any appellate experience, you know that appellate courts always require a statement of the issues presented right up front in the appellant’s brief (the appellee has an opportunity to include a counterstatement of issues presented). Even though rules rarely require it, you should include a statement of the legal issues involved up front in trial court briefs as well, in an introduction or preliminary statement that also includes just enough facts for the court to understand the issues.
This is, in essence, the advice Scalia and Garner give in Making Your Case: The Art of Persuading Judges. They continue with a warning that it behooves us all to heed:
But while your statement of the issue should come before a full statement of the facts, it must contain enough of the facts to make it informative. ‘Whether the appellant was in total breach of contract’ is a little help, but not much. Fill in the facts that narrow the issue to precisely what the court must decide: ‘The appellant delivered a load of stone two days late under a contract not providing that time was of the essence. Was the appellee entitled to reject the delivery and terminate the contract?’
Finally, don’t bother wasting the judge’s time with a boilerplate “Comes now plaintiff, ABC Corp. and submits this memorandum of law in support of its motion to dismiss defendant XYZ Corp.’s complaint seeking damages for breach of contract.” After all, most of that information should be in the document’s caption.