3.3.3 HARVESTINGARGUMENTS FROMNONMANDATORY AUTHORITIES
If you are writing to a trial court, you need to know first whether a mandatory authority governs the issue directly. If you are writing to a court of last resort, or if there are no mandatory authorities that are directly on point, you may need to look beyond mandatory authorities.
First, if you are in a state court or in a federal court other than the Supreme Court, you should determine whether your jurisdiction is within the mainstream. If your jurisdiction is within the mainstream, and the mainstream is on your side, your arguments will be pretty much laid out for you. If, in contrast, your jurisdiction is the first to tackle a new interpretation of the law, or a new cause of action entirely, one side or the other may be able to argue that it is now time to return to the old way of doing things. If all or most of your sister jurisdictions have made a jurisprudential change, one side can argue that it is time for this jurisdiction to make the change as well.Whether you are arguing to a trial court, an intermediate court of appeals, or a court of last resort, you need to decide whether to cite nonmandatory, or even nonjurisdictional, authorities. If your jurisdiction is within the mainstream and if authorities within your jurisdiction are sufficiently on point to answer your legal question, there may be no need to cite authorities outside of that jurisdiction. If your jurisdiction is out of the mainstream or if there are no authorities that are directly on point, you may want to consult nonmandatory or nonjurisdictional authorities as well.
If you have not already done so, now is a good time to identify “foundational search terms”: These are unique statute numbers or legal phrases that always pull up on-point authorities. They may pull up other authorities as well; I call them foundational search terms because they include the fundamental, or foundational, legal terms that are relevant to a particular legal issue.
Often, you will discover foundational search terms as part of your research, so don’t be surprised if you can’t identify them until well into your research. For example, if you were arguing that an employer should ban smoking in the workplace, you would discover the term safe workplace in a relevant statute. Both the statute number and the term safe workplace could be good foundational search terms. A Boolean search that looked for the statute number or the term safe workplace would be a broad search, but if you limit it to the mandatory authority database,30 you would be sure to find every case in which the court of last resort in your jurisdiction addressed the issue of safe workplaces.Search the foundational search terms in your mandatory database to make sure you have the most recent word on how the court of last resort has interpreted the crucial word, phrase, or statute at issue. You should review each relevant case from within the last few years to make sure that you are up to date on the mandatory authority. In addition, you should find the most recent cases in your jurisdiction to have addressed the issue in any way, even if they were not decided by the court of last resort. If your search pulls up too many hits, try using the when clause from your research question to help you to identify fact-based search terms to add to your search, which will help you discover the authorities that are most on point. In the smoke-in-the-workplace case, for example, you could add “cigarette or tobacco or smoking or smoke or fumes” to narrow your search. Remember, this technique is meant only to help you verify that you have found the most recent opinions that could possibly be relevant; whether or not you cite them will depend on whether they actually are relevant.
If there are relevant authorities in your jurisdiction but no authorities that are sufficiently on point, plug your fact-based foundational search into databases outside your jurisdiction. In this way you may be able to discover any cases that are on point as to issues and facts and that can therefore serve as persuasive authority.
Although these cases would be a source of an argument rather than an authority for it,31 courts often find on-point authorities to be helpful guideposts, even when they are not mandatory.Furthermore, you may be able to “harvest” effective arguments from nonmandatory authorities both within and outside your jurisdiction. When I refer to harvesting an argument, I am suggesting that you use the raw materials from an argument or an analysis as an inspiration for your research, and then figure out how to make that same argument to your court. Note that I am not suggesting that you should necessarily cite these nonmandatory or nonjurisdictional authorities. Instead, use them to inspire and direct your research so that you can find valid and relevant authorities that you can cite to support the arguments that you harvested.
Suppose, for example, that you are arguing that the Americans with Disabilities Act (ADA) forbids your client’s employer from requiring her to submit to medical testing. You are arguing the case in a motion brief in a circuit that has no mandatory authority governing the issue. The statutory section at issue, 42 U.S.C. § 12112(d)(4)(A), provides:
Prohibited examinations and inquiries
A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.
You are arguing that the term employee in this section means “any employee,” while your opponent is arguing that the term means only “qualified individuals with disabilities.” In your research, you discover a case from a nonmandatory authority that looks at the ways that the terms employee and qualified individual with a disability are used throughout the statute. That court alludes to statutory and regulatory language that supports your conclusion:
A plaintiff need not prove that he or she has a disability unknown to his or her employer in order to challenge a medical inquiry or examination under 42 U.S.C.
§ 12112(d)(4)(A). In contrast to other parts of the ADA, the statutory language does not refer to qualified individuals with disabilities, but instead merely to “employees.” 42 U.S.C. § 12112(d)(4)(A).McGuffin v. Bernard, 444 F. Supp. 2d 455, 472 (S.D. Ohio 2009).32 A writer who merely cited that nonjurisdictional case as authority would not use it effectively:
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BAD EXAMPLE
The United States District Court for the Southern District of Ohio has observed that the term “employee” in 42 U.S.C. § 12122(d)(4)(A) must refer to all employees and not just to those employees who are qualified individuals with disabilities. McGuffin v. Bernard, 444 F. Supp. 2d 455, 472 (S.D. Ohio 2009). It noted that Congress had used the phrase “qualified individual with disabilities” in other sections of the ADA and could have done so in § 12122(d)(4)(A) if it so desired. Id. Therefore, when the ADA forbids medical inquiries directed to “an employee,” the term must mean...
To harvest the argument effectively, the writer should let the nonmandatory source inspire further research. The writer should notice that the court based its analysis — at least implicitly — on a governing rule that says that when Congress uses the same term in more than one section of a statute, the term should be interpreted consistently, and when Congress chooses a different term, it must have intended the term to mean something different. This observation should lead the writer to conduct research to find an appropriate rule in the mandatory jurisdiction. But finding an appropriate rule is not enough. It would be ineffective to merely cite the mandatory rule and state the same conclusory analysis. Instead, the writer should also research the language of the statute and figure out how best to apply the rule regarding consistent interpretation of terms to the “fact” of the statutory language:33
GOOD EXAMPLE
When Congress uses one term in one part of a statute and a different term in another, this court should assume that different meanings were intended.
Cucilich Industries v. Perek, 599 F.3d 947, 955 (18th Cir. 2009). In Cucilich Industries, the Eighteenth Circuit analyzed the Carriage of Goods by Rail Act and noted that “Congress chose to use different terms in [the Act] when referring to the ‘shipper’ in conjunction with other parties, on the one hand, and the ‘shipper’ alone, on the other.” Id. at 956. Accordingly, the court refused to interpret the term “shipper” in one clause in the same way that it interpreted the phrase “shipper, receiver, or holder of bill of lading.” Id. at 958.When Congress chose to use the term “employee” in 42 U.S.C. § 12112(d)(4)(A) of the ADA, it did so in order to refer to all “employees” of the employing entity, and the term should not be interpreted to mean “qualified individual with a disability.” The terms “employee” and “qualified individual” are defined separately in the Act, at §§ 12111(4) and 12111(8), respectively. Section 12114(c) specifies limits that can be imposed on “employees,” while other sections speak specifically to qualified individuals with a disability. Section 12122(b)(5)(A), for example, notes that discrimination against a “qualified individual on the basis of disability” includes not making reasonable accommodations for “an otherwise qualified individual with a disability.” Similarly, § 12112(b)(5)(B) forbids denying employment in certain circumstances to “an otherwise qualified individual with a disability.” Accordingly...
Notice that the writer has gone beyond the conclusory statement from the McGuffin case. That decision merely referred to “other parts of the ADA” that mentioned “qualified individuals with a disability.” As part of harvesting the argument, the writer took a cue from that conclusory language and carefully read the ADA so that he or she was able to quote and cite the specific provisions that mentioned “qualified individuals with a disability” as opposed to “employees.”
Accordingly, one way to “harvest” an argument is to (1) unpack a relevant legal conclusion from a nonmandatory source, (2) conduct research to find a mandatory rule that would lead to that conclusion, (3) articulate that mandatory rule and explain it appropriately, and (4) apply that rule completely and effectively to the appropriate facts in your client’s case.34
If you believe that the court you are writing to would find the nonmandatory source to be meaningful, you could include a “see also” citation to that authority, but you should not presume that one is necessary or even appropriate.
In the alternative, if the area of law were novel or the facts or legal issues in the nonmandatory cases were particularly relevant, the writer might follow the citations to the mandatory authorities with a discussion of the nonmandatory authority, perhaps beginning the discussion by noting, “This is just the approach taken by the Fifteenth Circuit in a very similar case....”It might be helpful to analogize harvesting arguments from nonmandatory sources to the way a teenager (let’s call her “Betty”) might get ideas from a friend (let’s say “Biff”) when she is trying to get her parents to agree to let her do something (let’s say Betty wants to take a field trip that involves skydiving). Betty talks to Biff and finds out that Biff’s parents were swayed by three arguments: (1) Biff has been a member of the skydiving club for three years; (2) Biff gave his parents a newspaper article that said that college admissions offices like “adventurous” students and (3) Biff has information about the safety record of the skydiving company that shows that it complies with best practices and that it has a perfect safety record.
In making her argument to her parents, Betty is not going to make the skydiving club argument because she just joined the club last week so that she would be eligible for the trip. She’s also not going to argue that “Biff says it’s really safe,” because Betty’s parents are unlikely to rely on Biff’s word. She also isn’t going to say “Biff’s parents are letting him go,” because she knows that her parents think that Biff’s parents are sometimes too lenient. She decides not to tell them that “Biff says skydiving will look good on my college application,” because Betty’s application is already in great shape, and she decides that her parents will think that argument is irrelevant. She knows that safety is important to them, however, so she does her own research and finds both the article Biff knew about (he gave her the cite) and other articles that highlight the company’s stringent use of best practices.
In other words, when you harvest arguments, don’t just cite to a nonmandatory source. That method is about as useful as telling the court “Biff’s parents say this is a good argument.” Instead, do the work. Take ideas from the nonmandatory cases, but don’t rely on them.
To sum up, when designing and executing your research plan, think ahead, but be ready to explore new leads as you learn more about your case and its issues.