6.1.3 ACCURACY INCASE DESCRIPTIONS
As noted above, an effective case description includes the relevant issue, disposition, facts, and reasoning. It should go without saying that legal writers should not misrepresent any of these elements.
Say it I must, however. When I chat with judges and law clerks and quiz them about their legal writing pet peeves, many mention wordiness and poor organization. Almost all of them, however, complain about attorneys who misrepresent the facts or the law. Law clerks describe the many times that they have read in a brief that a case stands for one proposition, only to consult the case and find that it stood for some wholly unrelated point, or worse, that it contradicted the very point the attorney was using the case to make.So the first thing you need to remember about accuracy is that someone will be checking your work. And don’t count on escaping scrutiny if you are submitting a brief to an overworked and understaffed trial court; at the very least, your opponent should be checking the validity of your cited cases.5Don’t be tempted to misrepresent case law, either through negligence or willfulness. The momentary satisfaction of presenting an argument with a veneer of validity is not worth the cost in reputation and future credibility. Furthermore, you may face sanctions; ABA Model Rule 3.3(a) provides that a lawyer shall not “knowingly make a false statement of fact or law to a tribunal.”
Accordingly, let us presume that you are not going to knowingly misrepresent cases; how can you avoid doing so negligently? First, avoid two common shortcuts that often lead to mistakes; second, be careful to avoid characterizing dicta as holdings, particularly when describing certain categories of cases.
One shortcut to avoid is relying on how others have characterized cases. If you read a memo, brief, or court opinion that characterizes a case in a certain way, it is tempting to repeat that characterization yourself.6 Certainly, you may reason, that attorney or that judge would not have misrepresented the law.
Resist the temptation. Take the time to click through to the cited case and to read it for yourself to verify that it says what you think it says. Furthermore, be sure to use Shepard’s, Keycite, and BCite, and to conduct further research to verify that the case is still valid law. Even if the judge or attorney did not misrepresent the law, more recent authorities may have changed the validity of that case. Thus, read it and update it yourself; don’t rely on the work of others.Another shortcut to avoid is using a case as authority when you have read only an isolated paragraph or two. Modern computer research can often send legal researchers on a cavalcade of clicking, jumping from one source to another to another, and from one use of a search term to the next. If you are not careful, you can end up citing a dissenting opinion as authority. One reason that this happens is that every paragraph of a case looks the same on a computer screen; if a hotlink or a search term jump takes you to the middle of an opinion, you have no way of immediately telling from that paragraph if you are reading a majority opinion, a concurrence, or a dissent.7If you don’t take the time to discern the relevant issue, disposition, facts, and reasoning, you may not discover that you are reading something other than the majority opinion.
The second way that writers may negligently misrepresent the law is by failing to distinguish dicta from holdings, especially in what I refer to as kickback cases. A kickback case is a case that comes to a court of appeals after the trial court has granted a motion to dismiss or a motion for summary judgment. If the court of appeals reverses and remands the decision, it in essence “kicks it back” to the court below. But a decision to reverse and remand does not necessarily mean that the court made any findings as to the merits regarding how the law applies to the facts. In reversing a grant of a motion for summary judgment, the court may be doing no more than finding that a dispute exists as to the material facts.
When reversing a grant of a motion to dismiss, the court is merely finding that the pleadings were sufficient to state a claim, not that the pleadings were true or that the plaintiff will necessarily succeed in his or her cause of action. It is particularly important to remember that the standard of review for a motion to dismiss requires a court to presume that a complaint’s factual allegations are true. This presumption does not mean, however, that the allegations are in fact true or that the plaintiff will be able to establish at trial that they are true.For example, in a 1991 case,8the plaintiffs had alleged that police officers had owed a duty to protect a man made helpless by drunkenness when they interfered with acquaintances who were helping the intoxicated man. These acquaintances left the scene when the officers took control of the situation, the complaint alleged, and the man later fell to his death after the officers ordered him to walk home alone. In granting (and affirming the granting of) defendants’ motion to dismiss, the trial court and the court of appeals found that the defendants owed no duty to the plaintiff’s decedent under the facts alleged. The state supreme court reversed the decision, noting that the Restatement of Torts provides that a person owes a helpless person a duty of care when he or she “takes charge” of that person and then leaves the person in a worse situation. Accordingly, the court reversed the decision below.
A careless writer, trying to explain the rule about taking charge of a helpless individual, might misrepresent the court’s holding by quoting a partial sentence with a misleading introduction:
BAD EXAMPLE
The court held that “once the police officers took control of the situation and preempted individuals already attempting to aid the petitioner’s obviously injured and intoxicated decedent, respondents incurred a duty to follow through and finish what was begun.” Russell v.
City of Columbia, 406 S.E.2d 338, 339 (S.C. 1991).The language is quoted accurately; the context, however, is not accurate. A law clerk who went to read the decision would find that three words missing from the sentence create a vastly different impression of the case (the emphasis is added):
Petitioner argues that once the police officers took control of the situation and preempted individuals already attempting to aid the petitioner’s obviously injured and intoxicated decedent, respondents incurred a duty to follow through and finish what was begun.
The state supreme court did not find that the officers had incurred a duty of care or that the facts were accurate as pleaded. It merely restated the petitioner’s argument and found that the complaint was adequate to state a cause of action. In contrast, notice how the writer in this example accurately portrays the disposition of the issue and uses the word “may” to indicate the lack of a legal holding:
GOOD EXAMPLE
Persons may incur a duty to a helpless person when they send away others who are rendering aid. Russell v. City of Columbia, 406 S.E.2d 338, 339 (S.C. 1991) (complaint sufficient to state cause of action as to duty when it alleged that officers questioning intoxicated man sent away persons who were trying to help him).
Thus, you can still cite to a kickback case; you must, however, accurately portray the issue and its disposition in any case description.
Accurately describing authority cases is one of the best ways to educate a court about the meaning of the law. You will increase your chances of doing so both effectively and accurately if you make sure to (1) provide sufficient information about the issue, disposition, facts, and reasoning; (2) focus the information on the issue currently under discussion; (3) use language efficiently to avoid unnecessary wordiness; (4) use parenthetical rather than textual descriptions as appropriate for rule authorities or less significant cases; and (5) take care to avoid misrepresenting the cases you cite.