3.3.2 WRITING TOCOURTS OFLASTRESORT

If you are writing to the United States Supreme Court or a state court of last resort, some well-worn research paths can be fruitful. First, review the authorities cited in the lower court opinions; you may well use some or all of them in your brief.

Consider, too, that the lower courts may have been persuaded by authorities that would not persuade a court of last resort. For example, if at the intermediate appellate level you were arguing to a court of appeals, you (or the attorney then working on the case) might have used on-point authorities from that court or from other courts of appeals. When you must write a brief on that same issue to the court of last resort, you should do more research to see how that court has addressed this issue or at least how close the court has come to addressing that issue. In this way, you may discover a variety of authorities that were not explored in the lower courts. Therefore, although you can begin your research with the authorities cited by the court being appealed, those authorities should be only a starting point.

Consider three cases that may or may not be representative. In Florida v. Jardines, 569 U.S. 1 (2013), the United States Supreme Court cited approximately 41 cases in its opinion. Thirty of those cases were United States Supreme Court decisions. The Florida Supreme Court, whose opinion the Court affirmed, cited about 95 cases, 45 of which were Supreme Court cases. Jardines v. State, 73 So. 3d 34 (Fla. 2011) cert.

Finally, in United States v. Stevens, 559 U.S. 460 (2010), the United States Supreme Court cited approximately 44 cases. All of these cases were United States Supreme Court decisions. The United States Court of Appeals for the Third Circuit, whose opinion the Court affirmed, cited approximately 58 cases, of which 42 were United States Supreme Court decisions. United States v. Stevens, 533 F.3d 218, 221 (3d Cir. 2008), aff’d, 559 U.S. 460 (2010). Eighteen of the 44 cases cited in the Supreme Court decision had also been cited in the opinion being reviewed.

These illustrations provide at least two guideposts: First, the United States Supreme Court prefers its own decisions, although it is willing to consider others. Second, and perhaps more importantly, the Supreme Court not only may, but probably will, rely on cases beyond those discussed in the lower courts. Thus, when writing a brief to a court of last resort, carefully consider any decisions from that court that were cited by the lower court(s). If there are other decisions cited — e.g., decisions of relevant courts of appeals — read those decisions and see if those decisions cite to the court of last resort. If you want to use the rules or holdings from those lower court decisions, you may be able to find a high court “hook” in the decisions themselves. If you cannot find any high court authority in those decisions and you still want to use the legal principles, use your research skills (and your abstract reasoning) to search for high court decisions that govern the same or similar points. Once again, this is not to say that you must restrict your case citations to mandatory cases when writing to a court of last resort. Nonmandatory cases will be seen as more valid, however, if the writer can connect them to a mandatory rule. The next section addresses methods for pulling arguments from nonmandatory authorities.