FREQUENTLY ASKED QUESTIONS ABOUT BUILDING AFFIRMATIVE, AUTHORITY-BASED ARGUMENTS
| Q. | How many cases should I cite to support each section of a brief or motion? |
| A. | The real issue is how many cases you should discuss, not how many you should cite. In general, it’s worth discussing only a handful of cases in each section — the ones that exert the greatest gravitational tug on your dispute. Beyond that number, it usually makes sense to cite supplemental cases merely to confirm specific, narrower points or to corroborate the premise of your dominant cases. Lawyers often use parenthetical descriptions to discuss nonessential cases quickly (as shown in Examples 4.3, 4.4, and 4.6, among others). |
| Q. | How much detail should I provide about the cases that are essential to the resolution of my dispute? |
| A. | You should provide enough information to ensure that the judge knows what happened in the case, how the case came out, why the case came out that way, and why it supports your side. These facets of a good discussion can devour multiple pages or nibble up only a few lines, depending on both the complexity and importance of the case. Unless a case is enormously influential on your dispute, you can probably discuss it sufficiently in a single paragraph (or less). |
| Q. | Within a given part of my Argument, in what order should I discuss my authorities? |
| A. | Discuss your most powerful point first, then your second most powerful point, and so on. The word “powerful” refers to the composite strength of a point including (1) how intuitively compelling the point is, (2) how analogous and helpful the authorities are that support that point, and (3) how much sway those authorities exert on your judge. If you are litigating in a federal district court and have a controlling circuit court opinion and a merely persuasive Supreme Court opinion, you will usually begin with the controlling authority (unless some other reason — such as maintaining flow or explaining the evolution of a doctrine — convinces you to put the more-prominent but less-relevant case first). The text of a statute should usually appear before the cases that construe that text. |
| Q. | May I list my authorities in footnotes? |
| A. | As noted in Example 4.4 (comment C), I don’t recommend it. Try to minimize the number of footnotes in a brief or motion. Also, remember that many jurisdictions will treat a point as being “waived” — not capable of being raised on appeal — if an argument is mentioned only in a footnote, so be wary about relegating a substantive point to a footnote. Footnotes are fine, however, for string cites. |
| Q. | Should I cite precedent from other jurisdictions? |
| A. | Yes, but when authorities do not compel an outcome, don’t overplay their importance. Instead, focus on the principles that compelled those courts, not on which courts acted. For instance, this sentence comes from a case in which a plaintiff who failed to opt out of a settlement with a bank later objected to the settlement: “Circuit and District Courts across the country agree that the opt-out right completely protects against any impairment of an absent class member’s interests.” That sentence emphasizes who acted: courts in other jurisdictions. The topic sentence, instead, should have emphasized the principle, as in the following revision: “A class member’s right to opt out of a settlement completely protects his legal interests. For example,....” The revision emphasizes the key point rather than the identity of who made that point (i.e., noncontrolling courts). You can signal, however, that your position has been adopted broadly, such as by writing, “Nearly every court to assess this issue has concluded that ….” Avoid buzz words such as “control,” “must follow,” and “requires this Court to” that imply that your judge needs to follow these non-controlling authorities. |
| Q. | Should I ever cite authorities such as treatises and law reviews? |
| A. | Yes, but be selective about how you cite them. Emphasize the reasoning and evidence offered in these authorities. Merely telling a court that a professor recommended something will ordinarily gain you little ground unless the treatise or scholar is especially influential within a field (such as Nimmer’s treatise on copyright or Areeda’s treatise on antitrust). Showing that your adversary’s expert wrote an article supporting your position is also helpful — and fun. |
One good example of how to use secondary sources comes from a case in which a party challenged a patent. Its brief offered this information from journalists and scholars to suggest that the Patent & Trademark Office rubberstamps nearly all patent applications, but that a closer look at these patents (“reexamination”) proves nearly all of them to be invalid:
Generally, when reexamination occurs, … nearly 74% of the time the PTO finds the patent invalid or restricts its claims. Anne Marie Squeo, BlackBerry Gambles Patent Office Will Be on Its Side in Court, Wall St. J., Jan. 17, 2006, at B1. This rate is unsurprising given that the overworked PTO can spend a mere 18 hours on average to review a patent application before initial issuance....Cecil D. Quillen, Jr., Continuing Patent Applications and Performance of the U.S. Patent and Trademark Off., 11 Fed. Cir. B.J. 1, 3 (2001) (estimating rate of patent approvals by the PTO to be 97%).
| Q. | I have a current case that cites an old case for the proposition that I want to establish. Should I cite the new case, the old case, or both? |
| A. | In general, cite newer cases to show judges that the proposition that you want to establish is still followed; older cases may cause judges to wonder whether the law has evolved since your case was decided. You can cite the new authority and then add a parenthetical noting that it cited or quoted an older case. In some instances, however, you’ll want to show that a proposition is timeless: cite the old case (or both cases). Citing just an old case and a new case, however, can cause a court to infer that the proposition was not followed during the interval. Thus, if you cite both, consider indicating that the principle is well established or widely followed, such as by using a “see, e.g.,” signal (to convey that you are listing only a subset of the available cases) or by adding a parenthetical that states something to indicate that the authority is robust, such as “(citing twenty-six cases that followed this rule).” |
| Q. | How can I best use a case that contains a helpful legal principle but in which the facts are completely different from those in my client’s case? |
| A. | Neither emphasize that the case was distinguishable — that’s your adversary’s job — nor claim that the cases are identical. If the principle from the other case applies to your case, you can usually proceed safely. If the quote sounds good but is from a totally distinct context, be aware that the other side will point out that the quote arose in a different situation and then assess whether you’d be embarrassed if the judge asked you about the other case. Protect your credibility and make preemptive concessions if necessary. |
| Q. | If a case is helpful on one issue but contains language that supports my adversary’s position on a separate issue, should I omit it? |
| A. | Tread carefully. Lawyers usually scour the authorities cited by their adversaries — as we will see in the next chapter. Once you cite a case, it becomes "yours"; thus, you need to assess whether the benefits of citing the case justify the pain that you’ll experience when the other side finds that the very case you cited supports an essential part of its argument. Try to find equally helpful but nontoxic cases. If the tainted case is the only viable option you have, weigh carefully whether it is worth the risk. Similarly, consider whether to milk the venom from the case before the other side can use it. |