3.6 SUMMARY
To write an effective brief, you must follow an effective research plan; you need to know your case thoroughly and plan your research accordingly. Before you research, get to know the facts of your client’s case by abstracting any record materials.
Identify the questions that your research must answer, and be realistic about the types of authorities you can expect to find. When assessing the validity of authorities, use the abstraction ladder to identify those that address analogous facts and issues. Weigh the validity of the source of the authority, and be willing to look beyond legal authorities. Be certain to update your authorities and to get a complete picture of the relevant area of law, including nonmandatory authorities. When appropriate, do relevant follow-up research so that you can “harvest” effective arguments from nonmandatory authorities. When conducting your research, use Boolean research methods to give you better control over your results. Be mindful about the technology you use: Focus your attention, and use methods that promote engagement with the texts that you read.Finally, be practical about the percentage of your available time that you spend on researching. Set a deadline for research that allows you sufficient time to work on the actual writing of your brief. The process of writing the brief will often reveal gaps in your research; by giving yourself time to write, you create opportunities for finding any research gaps.
Chapter Three Review
1. Create an abstract of the record that allows you to record important information, speculate on its value, and find that information later without wading through the entire record. Use an effective format.
2. To prepare for research, write a research question that helps you to measure your ignorance and focus your research appropriately. A good format is: “Under relevant law, does legal status exist when legally significant facts exist?”
3.
Conduct background research to educate yourself about the area of law, any statutes involved, and the relevant issue. Doing so will let you conduct the rest of your research more effectively.4. Use the abstraction ladder to think categorically about the law and the facts in your case. Categories are important because legal arguments often focus on whether a rule applies to a broad category that includes a certain person, thing, or event, or whether the rule applies to a narrower group that excludes a certain person, thing, or event.
5. Try it identify a theme for your client’s case early in the research process: The best themes are connected to policies that are always valid—even in the face of your opponent’s best argument.
6. When conducting research, look for authorities that are both valid and relevant. Be strict on validity: Courts like to rely on mandatory courts; if you find a good argument in a nonmandatory case, “harvest” the argument and use it as inspiration for research in mandatory cases. Be more generous with relevance: Identify legally significant categories and use them to find mandatory authorities that have addressed issues that are relevant to yours.
7. Update your Boolean search skills so you can research more precisely. 8. You can use extralegal authorities and internet sources, but be particularly circumspect when doing so. 9. Be aware that digital documents tempt us to skim, skip, and skip out. Remember that effective research requires effective, focused reading.
1 Although the joint appendix is usually not the complete record, courts may use the term record to refer to information from the joint appendix or from the appendix to the petition for the writ of certiorari. E.g., Horne v. Flores, 557 U.S. 433, 470 (2009) (“The record contains no factual findings or evidence that any school district other than Nogales failed (much less continues to fail) to provide equal educational opportunities to ELL students. See App. to Pet.
for Cert. in No. 08-294, pp. 177a-178a.”). If courts cite to both the “real” record and a joint appendix, they will use language to indicate the difference. See, e.g., Ayestas v. Davis, 138 S. Ct. 1080, 1099 (2018) (“The plan also noted that it was ‘clear that [Ayestas] had a history of substance abuse.’ Record 721; see also App. 267”).2 E.g., Fed. R. App. Proc. 6(b)(2)(B) (describing requirements for the record on appeal in bankruptcy cases); Fed. R. App. Proc. 10 (describing requirements for the “Record on Appeal”); Fl. R. App. Proc. 9.200 (describing the contents of “the record” in various categories of cases).
3 See Michael R. Fontham, Michael Vitiello & David W. Miller, Persuasive Written and Oral Advocacy in Trial and Appellate Courts §§ 11.6, 11.7 (2d ed., Aspen 2007). 4Fed. R. App. Proc. 28(a)(6) provides that the fact statement must include “appropriate references to the record.” Rule 28(e) illustrates appropriate citation form for record information. Although the illustrations show pages and not paragraphs or lines, you would be wise to provide more specific cites when available. You should always cite to the appropriate page; include more specific cites when possible. 5Steven K. Hayes et al., Brief Writing: Make Yourself Useful as Well as Ornamental, 76 The Advoc. (Texas) 27, 27 (2016). 6See, e.g. Mary Barnard Ray & Jill J. Ramsfield, Legal Writing: Getting It Right and Getting It Written 359-63 (6th ed., Thomson Reuters 2018). 7See, e. g., id. at 323-24; Laurel Currie Oates & Anne M. Enquist, The Legal Writing Handbook § 7.4.2 (6th ed., Aspen 2014). Although your research questions may be similar in format to questions presented, you should not expect that the research questions will be identical to the formal question presented. 8135 S. Ct. 785, 787 (2015). 9E.g., Daniel Richman, The Past, Present, and Future of Violent Crime Federalism, 34 Crime & Just.
377, 387 (2006) (quoting a contemporaneous article commenting that federal laws were inspired by “recent depredations of organized criminal bands, enabled by modern methods of transportation to operate over wide territories”). 10S. I. Hayakawa, Language in Thought and Action 155 (4th ed., Harcourt, Brace, Jovanovich 1978) (discussing the abstraction ladder in general and the cow example in particular). Note that some people use the concept of a “funnel of abstraction” to make the same point. 11Whitfield v. United States, 135 S. Ct. 785, 788 (2015) (citing Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 783, n. 12 (2000)). 12E.g., Vallies v. Sky Bank, 591 F.3d 152, 154 (3d Cir. 2009) (affirming decision of district court that “follow[ed] persuasive authority from our sister courts of appeals”). 13E.g., Cmty. Fin. Servs. Ass’n of Am., Ltd. v. Fed. Deposit Ins. Corp., 132 F. Supp. 3d 98, 120 (D.D.C. 2015) (“Although the Agency Documents provide guidance on the FDIC and OCC’s views regarding risk management, they do not impose any obligations or prohibitions on banks. Guidance that ‘does not tell regulated parties what they must do or may not do in order to avoid liability’ is merely a general statement of policy”) (citation omitted). 14 United States Sec. & Exch. Comm’n v. Alpine Sec. Corp., No. 17CV4179(DLC), 2018 WL 1633818, at *8 (S.D.N.Y. Mar. 30, 2018). 15See generally Deborah J. Merritt & Melanie Putnam, Symposium on the Trends in Legal Citations and Scholarship: Judges and Scholars: Do Courts and Scholarly Journals Cite the Same Law Review Articles?, 71 Chi.-Kent. L. Rev. 871 (1996). 16 In 2018, a federal district court in New York turned to a law review article as it examined current issues in immigration law. Michalski v. Decker, 279 F. Supp. 3d 487, 496 (S.D.N.Y. 2018) (citing Michael Kagan, Immigration Law’s Looming Fourth Amendment Problem, 104 Geo. L.J. 125, 128-29 (2015)). Likewise, in a 2015 case that explored the privacy concerns of parties to litigation, a court cited an article that analyzed the policy interests that courts shouldconsider. Freedom From Religion Found., Inc. v. Emanuel Cty. Sch. Sys., 109 F. Supp. 3d 1353, 1356, n. 2 (S.D. Ga. 2015) (citing Benjamin P. Edwards, When Fear Rules in Law’s Place: Pseudonymous Litigation as a Response to Systematic Intimidation, 20 Va. J. Soc. Pol’y & L. 437, 442 & n. 26 (2013)).
17 Merritt & Putnam, supra note 15, at 890-92. 18See generally Ellie Margolis, Beyond Brandeis: Exploring the Uses of Non-legal Materials in Appellate Briefs, 34 U.S.F. L. Rev. 197 (2000). 19Id. at 199 (citations omitted). 20See generally Coleen M. Barger, On the Internet, Nobody Knows You’re a Judge: Appellate Courts’ Use of Internet Materials, 4 J. App. Prac. & Proc. 417 (2002). 21See id. at 420-22. 22 Of course, the correct legal standard is often “it depends,” and Internet research is no different. Some blogs contain reasoned analysis that is more akin to that found in law reviews. As with law review articles, a blog may be an appropriate citation for a developing legal issue. For example, in a 2015 decision, the Ninth Circuit quoted the
observations in a blog of “one scholar” discussing the impact of racial and ethnic slurs. Zapata v. Vasquez, 788 F.3d 1106, 1115 n. 7 (9th Cir. 2015) (citing Ernie Lepore, Speech and Harm, N.Y. Times, Nov. 7, 2010, available at http://opinionator.blogs.nytimes.com/2010/11/07/speech-and-harm/).
23 For excellent advice on using the Internet to conduct effective legal research, consult Laurel Currie Oates & Anne Enquist, Just Research (2d ed., Aspen 2009). 24Howard A. Denemark, The Death of Law Reviews Has Been Predicted: What Might Be Lost When the Last Law Review Shuts Down?, 27 Seton Hall L. Rev. 1, 32 n. 77 (1996) (cited in Barger, supra note 20, at 438 n.
67). 25Raizel Liebler & June Liebert, Something Rotten in the State of Legal Citation: The Life Span of a United States Supreme Court Citation Containing an Internet Link (1996-2010), 15 Yale J.L. & Tech. 273, 307 (2013). 26Be sure to check the court’s local rules to see if they specifically address Internet citations. 27Take the time to learn the benefits and limitations of the various search engines that you use. As of this writing, Lexis and Westlaw generally allow more precision in researching, but this difference may fade as Google and other search engines update their capabilities. 28See generally Susan Nevelow Mart, The Algorithm as a Human Artifact: Implications for Legal (Re)search, 109 Law Libr. J. 387 (2017). 29See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-44 (1984) (holding that courts must defer to a federal agency interpretation of an ambiguous statute if it is based on a “permissible construction” of the statute). As indicated above, federal agencies sometimes interpret statutes in documents other than formal rulings. 30For example, Lexis and Westlaw have search techniques that would allow you to limit your search to just the highest court in the particular jurisdiction. 31Chapter Six explains the difference between “sources” and “authorities.” 32The language from this fictional case is adapted from Lee v. City of Columbus, 644 F. Supp. 2d 1000, 1011 (S.D. Ohio 2009). 33 The example mentions fictional case law that is adapted from Sosa v. Alvarez-Machain, 542 U.S. 692, 712 (2004), and APL Co. Pte v. UK Aerosols Ltd., 582 F.3d 947, 952 (9th Cir. 2009). 34Of course, it is vitally important to note that plagiarism rules vary greatly in academic settings and in litigation settings in practice. In an academic setting, if you “harvest” an argument from an authority, you should always note the source of the argument. When writing litigation materials in an academic setting, the best course might be to drop a footnote and indicate the nonmandatory source of the argument. Some teachers might give you permission to remove the citation, but presume that you should include the citation unless instructed otherwise. 35I have nagged legal database publishers for years that they should use shading, colors, marginal markers, or some other signal to make clear to all readers whether case text is a part of majority, concurrence, dissent, or plurality opinion. Within the past few years, LexisNexis has taken steps to do so, including a running bar across the top of the screen that shows readers where they are, and whether they are in editorial material, the majority opinion, or a dissent or concurrence. 36Anne Mangen, Bente R. Walgermo & Kolbjorn Bronnick, Reading Linear Texts on Paper versus Computer Screen: Effects on Reading Comprehension, 58 Int’l J. Educ. Research 61-68 (2013). “Readers in the paper condition had immediate access to the text in its entirety. This access is, moreover, built on both visual and tactile cues: the reader can see as well as tactilely feel the spatial extension and physical dimensions of the text, as the material substrate of paper provides physical, tactile, spatiotemporally fixed cues to the length of the text.” Id. at 66 (citations omitted). 37Id. at 61-68 (reporting results of a study showing that “subjects in the print condition scored significantly higher on the comprehension tests than those in the screen condition,” id. at 65). 38Id. at 61-68. “If texts are longer than a page, scrolling and the lack of spatiotemporal markers of the digital texts to aid memory and reading comprehension might impede reader performance.” Id. at 67. 39Id. at 61-68. “Evidence suggests that readers often recall where in a text some particular piece of information appeared (e.g., toward the upper right corner or at the bottom of the page).” Id. at 65-66 (citations omitted). 40Of course, you should update your authorities frequently during the research process, right up until the day you file your brief, and again as you prepare your oral argument.