Analyzing authority cases is an essential part of effective written advocacy.
Many legal writers neglect this important task, presuming wrongly that citations alone provide adequate support for the assertions in the brief. They seem to have the mistaken impression that judges have all of the needed law at their mental fingertips and that the brief writer needs only to allude to some of the relevant authorities, drop in some favorite quotations, or provide a string cite of the cases that might have some bearing on the case at bar — certainly the judge and the clerks can fill in the rest.
Most readers, however, need more information than the citation can give.I gladly agree with the premise that judges are extremely intelligent and very knowledgeable about the law. However, there is a difference between a judge’s general knowledge and the specific knowledge that is needed to decide a case intelligently. Most judges know and understand the general rules that apply to commonly encountered legal issues. This means that you do not need to discuss the British practice of writs of assistance in the colonies when arguing a Fourth Amendment case or cite to Marbury v. Madison if you are asking the court to declare a statute unconstitutional. Having the general knowledge to understand what rules mean and how they apply does not suggest, however, that all judges know the particular details of every case that you cite, or why and how each is relevant to your legal argument.
When you cite a case in a brief, it will most likely be for one of two reasons. You may be using the case to provide “rule authority”; that is, you are citing the case to provide authority for the existence of a rule. More likely, however, you are citing the case as “illustrative authority”; that is, you believe that the case effectively illustrates how the rule has been or should be applied. While the depth of your case description may vary depending on whether it is being used as a rule authority or an illustrative authority, you should almost always provide some description for each case you cite.
As a former deputy solicitor general has noted, “[e]very case that is worth citing... is worth discussing sufficiently to show why it is particularly on point or sheds analogous light on the question at hand.”1More recently, the Chief Justice of the Colorado Supreme Court noted that if a case is “important enough to cite, it should be analyzed within the brief.”2The question remains, what is “sufficient” discussion or analysis? Most law students are accustomed to describing cases for their professors in casebook-focused courses, and the edited versions of cases in those books tend to be focused on the issues relevant to the course. Often, students learn how to identify the “main point” that the edited case is about, and frequently that main point is relevant to the case’s holding. Case descriptions in legal writing documents, however, are different. True, sometimes the main point will be relevant to your argument. At other times, however, you will be citing a case for one or more of its smaller points, while its overall holding may be irrelevant to your argument. More importantly, sometimes the same case may be relevant to more than one point in your argument, and you will need to adjust your case description depending on how you are using the case.
Accordingly, you need to learn how to focus your case descriptions appropriately in legal writing, providing the relevant detail and omitting the rest. In most situations, if you are citing a case, the reader should be able to glean at least three of four elements from your case description. Notice that I say that the reader should be able to glean these elements. I am not saying that you must devote a sentence to each of these elements or even that you must state each one directly. Your decisions as to which elements to state directly and which to leave unstated will depend, as do most decisions, on the context in which the case descriptions appear.
With that warning, here are the elements: (1) The relevant issue.
Be sure that the reader can identify which of the case’s many issues and sub-issues you are using the case to illustrate. You should also provide the legal context in which the court analyzed that issue, if it is different from the context of the case at bar or the cases under discussion in that section of your argument. If you will be analogizing or distinguishing the case based on some particular facet of the legal issue, be sure to provide sufficient detail so that the reader can understand that facet of the issue. (2) The disposition of that issue. Make clear how the court disposed of that narrow issue and, if relevant, how it disposed of the entire case. (3) The facts relevant to that issue. Include enough of the legally significant facts for the reader to understand how the court applied the law to reach its holding on the issue and how the case is analogous to the case at bar. If you wish to draw an analogy to these facts or to distinguish your case based on its facts, provide more detail. (4) The reasoning relevant to that issue. Include enough information to give the reader a basic understanding of why the court decided the issue before it in the way that it did. If either the case or the reasoning behind the court’s decision is significant, provide more detail. When writing a case description, you should presume that you need to include all four of these elements. Admittedly, on some occasions, it may be appropriate to include only three rather than four of the elements. At times, the facts may be omitted in a section devoted to an issue of law, particularly in a situation in which the writer cites two or more cases with similar fact situations. Likewise, when an argument turns on a question of fact, it may be permissible to omit a court’s reasoning. When in doubt, however, include all four elements. Note that including these four elements in a case description is not all that the effective brief writer must do. To ensure that the brief is effective, you must be sure that your case description is as succinct as possible; you must use verb tenses accurately; you must choose when to use parenthetical case descriptions instead of textual ones, and to do so effectively and appropriately; and you must be certain that the case description is accurate.