Example 4.6

Takeaway point 4.6: Use a string cite to establish nonobvious points and to signal to readers that disagreeing with your client’s preferred outcome would be unwise, unusual, or reversible.

Some disputes swing on a single fact or a single authority. But in others, lawyers find it useful to show how many cases have supported their client’s position. Thus, when a point is important and disputed, you may wish to provide a string cite to show that your position has been accepted broadly. For instance, when Chief Justice Roberts was a litigator, he wrote that the Sixth Circuit had rejected an “approach adopted … by every federal court of appeals,” and then he added a footnote listing twelve circuit court opinions — including a prior opinion by a different Sixth Circuit panel. Even without knowing what that case was about, the sheer volume of authority suggests that the Sixth Circuit erred; after all, even the same court had previously reached the opposite conclusion. Used properly, string cites either survey the law or show that a controversial, vital, or nonobvious proposition has been widely accepted, which exerts subtle peer pressure on readers. Avoid string cites in most other instances. Used incorrectly, they will clog your prose with a heap of needless authorities. Let’s look at a passage that uses a string cite effectively.

Here, a man in Oregon sought damages after he was injured while riding a threewheeled “all-terrain vehicle” manufactured by Honda. A jury ordered Honda to pay $5 million in punitive damages. Under Oregon law, appellate courts in Oregon could not review punitive damages awards. Honda nevertheless appealed, arguing that Oregon’s ban on letting appellate courts reduce punitive damages awards violated the U.S. Constitution’s Due Process Clause. Basically, Honda said that it is unconstitutional to prevent parties from appealing excessive jury awards.

Source: Honda’s brief from Honda Motor Co. v. Oberg, 512 U.S. 415 (1994).

“Common sense,” of course, is not an authority; the lawyers refer to it only because they also have a heap of authorities.

Most lawyers would have cited a case or two. Honda goes much, much further citing 271 cases in three appendices. Pay attention to how exhaustively top lawyers hunt for authorities that help their clients. But as we see later, Honda probably used a clever shortcut to find these cases.

Honda uses a technical verb: as used here, remit means to send a case back to a lower court to revise the damages award.

Some readers may find the word “sample” confusing: the word could mean that Honda looked at only some of the available cases (i.e., it sampled the cases). But the prior sentence clarifies that Honda looked at “all reported cases”; thus the word “sample” is meant to sound scientific and serious.

This “most important” phrase exemplifies how to write empathically: it provides a useful hint to readers at the exact moment that they might otherwise become confused.

Appendix A provides parentheticals for each of the 51 cases that reduced or remitted an award of damages.

Appendices B and C are even longer.

This massive string cite (which has been shortened here) orders its cases using The Bluebook’s Rule 1.4: federal circuit court opinions appear before district court opinions, which appear before state court opinions (starting with state supreme court opinions).

This citation format (which does not comport with The Bluebook) suggests that the authors may have cut and pasted these citations from some other source, such as a treatise, an article, or an ALR report. (ALR reports compile authorities in various areas of the law.) Tapping into resources like these can speed your research and save your client money. Just make sure the authorities support your proposition, have not been reversed or overruled, and do not contain comments that undermine other arguments that you are making.