Example 4.3
Takeaway point 4.3: You can cite numerous cases, but you should discuss only some — not all — cases that help your client.
You will sometimes cite multiple cases. The next example omits the contents of the paragraphs and focuses instead on how to flow from one case to the next.
The passage excerpts the brief filed by the struggling city of New London, Connecticut, which wanted to seize some private homes to build a business park for a pharmaceutical company. Several homeowners who sought to retain their homes filed a lawsuit asserting that New London would violate the U.S. Constitution by taking land from one private party and then “retransferring” it to another private party. New London leaned on precedent to support its plan. New London won 5-4, and the majority based its decision on the weight of these prior cases. New London also emphasized in its brief the poverty and blight that it was combating; it thus motivated the Court to follow the precedents that are discussed below.Source: City’s brief in Kelo v. City of New London, 545 U.S. 469 (2005) (some citations omitted).
This is almost a stellar sentence, but it goes on a bit too long. Even so, the point comes across: five Supreme Court opinions support New London. Readers also know that a discussion of these cases will follow.
Notice that the paragraph’s first sentence tees up Berman, explaining that this opinion is important before discussing it. You should generally tell readers what principle you will establish in a paragraph before you discuss the case that establishes that principle. Thus, notwithstanding Example 4.1 (line 5), few paragraphs should begin “In Xv.
These words signal that the brief is moving to the next case — and is still making its affirmative argument. Other phrases (“by contrast,” “only one case,” or “this Court has rejected the argument that”) signal that lawyers are about to deal with negative arguments, those that support the other side’s case. These types of “signposts” immediately let readers know what point the rest of the sentence will make.
A unanimous decision has no special legal effect, but unanimity hints that a prior court found an issue uncontroversial (or obvious).
You do not need to discuss in detail every case that favors your client. After telling the Court that the brief will present five favorable cases, the lawyers discuss all five of them, but two of the “discussions” are mere parenthetical summaries of the holdings. Notice that the two cases that received little attention involved money and information — not real property. The lawyers, in other words, deprioritized the two least analogous cases and thereby shortened their argument. You should usually do the same. Force readers to focus on the strongest and most analogous cases.
This sentence acts as the Conclusion of this part of the argument (i.e., the final “C” in CRAC).