6.6 SUMMARY
The practical brief writer has a lot to remember when trying to use case authorities effectively. Remembering the needs of the judges and clerks who must use your brief will help you (1) to include all of the authorities that are necessary; (2) to give enough information about those authorities, but not too much; (3) to present that information accurately and in a helpful way; and (4) to cite that information in a way that provides sufficient information without needlessly intruding on the text.
Chapter Six Review
1. If you cite a case for any significant point, you should include a textual or parenthetical case description. 2. An effective case description always includes the relevant issue and the disposition of that issue. It should also either or both of the relevant facts and the relevant reasoning. 3. Concentrate on succinctness by telling the reader what the court “held” or “found,” not what the case “regarded” or “involved.” 4. Promote accuracy by not relying on case descriptions from other documents and by making sure you are reading a majority opinion. 5. Avoid misrepresenting “kickback” cases by accurately distinguishing between allegations and holdings. 6. Make sure parenthetical descriptions reveal at least three of the needed elements; generally don’t follow a parenthetical case description with more textual description of that case. 7. In general, rely on cited paraphrases in case descriptions. Use direct quotations in a case description only when you are stating rules or other language at issue, or when you are justifying a conclusion you have drawn about the meaning of an authority. 8. Avoid Marie Antoinette syndrome by including sufficient context when quoting. 9. Strive to avoid chunky quotes; if you must include one, lead into it with an NPR Introduction. 10. If you analogize or distinguish authority cases in your rule application, analogize or distinguish specific people or things; don’t compare specific things to a whole case: Don’t: Like in Zahm, the officer viewed the criminal activities from a legal vantage point.
Do: Like the officer in Zahm, Officer Lamb viewed the criminal activities from a legal vantage point. 11. Research and follow formal and informal rules on whether and how to cite nonprecedential (aka “unpublished) opinions. 12. Legal writing is referenced writing: you must include a citation at the end of every sentence in which you state a legal proposition, refer to a new authority, or quote or paraphrase information from a court opinion or other source. In rule explanation sections, it would be typical to have a citation after every sentence, even though many of these will be id. cites. 13. When a statement of law is followed by a citation, the reader presumes the citation will be mandatory authority supporting that statement. If you are citing a nonmandatory source, identify that source in the sentence, e.g., “An Idaho court, applying a similar rule, has found that a supervisor may be considered an employer if the supervisor has a financial stake in the company.” 14. Place citations in text, not in footnotes; whenever possible, structure your sentences so that citations can appear as separate citation sentences at the end of a sentence. 15. You cannot refer to a case by name before you cite it; accordingly, you cannot use a “split cite” for a first, long-form case citation. Don’t: In Lamb v. Zahm, the court noted that supervisors cannot be held individually liable under Title VII. 101 F.3d 104, 109 (D. Nev. 2019). Do: Supervisors cannot be held individually liable under Title VII. Lamb v. Zahm, 101 F.3d 104, 109 (D. Nev. 2019). 16. Split cites are appropriate for short-form cites: “The plaintiff in Lamb had sued under both Title VII and the Family and Medical Leave Act. 101 F.3d at 106.” 17. Avoid string cites whenever possible; if not possible, use effective structure and placement to ease reading and comprehension. 18. If citing a case that cites another case, use “citation omitted” unless the original source is significant to your argument or would otherwise be significant to the court. Do: Lamb v. Zahm, 101 F.3d 104, 109 (D. Nev. 2019) (citation omitted). 19. Readers do not need perfect cite form, but they always care about the case’s name (for easy reference), its court and date (for validity), and the pinpoint citation (for verification).1 James vanR. Springer, Symposium on Supreme Court Advocacy: Some Suggestions on Preparing Briefs on the Merits in the Supreme Court of the United States, 33 Cath. U. L. Rev. 593, 601 (1984). (The author was a deputy solicitor general of the United States from 1968 to 1971.)
2 Nancy E. Rice, Tips on Legal Writing, Colo. Law., May 2015, at 61. 3 For information on avoiding wordiness generally, see Anne Enquist & Laurel Currie Oates, Just Writing: Grammar, Punctuation, and Style for the Legal Writer § 6.2 (4th ed., Aspen 2013). 4A detailed discussion of the sequence of tenses is beyond the scope of this book; for an excellent explanation of how verb tenses are used in legal writing, see Enquist & Oates, supra note 3, at §§ 8.3, 10.1.2. 5Admittedly, some lawyers do not take this seemingly obvious step. Take note, and be sure to do so with your own
opponents. It is both satisfying and effective to be able to say to a court — in an oral argument, a responding brief, or a reply brief — that the very case that your opponent cites actually hurts rather than helps his or her argument.
6 Of course, in law school, an academic honor code may forbid you to consult attorney briefs, or to use them without citing them as the source of your analysis. Even if it were permissible to use them without citation, however, you should not rely on their validity.
7 As of this writing, LexisNexis signals researchers — with a bar across the top of the screen — as to whether or not they are reading a majority opinion, a dissent, a plurality opinion, etc. Of course, you should never rely on a case without verifying that the language you are relying on is part of the majority opinion.
8 Russell v. City of Columbia, 406 S.E.2d 338 (S.C. 1991). 9See Section 6.5.1 for information on when to provide citations. 10 Morning Edition: In Gaming, a Shift from Enemies to Emotions (Nat’l Pub. Radio broadcast Jan. 7, 2014) (transcript available at http://www.npr.org/templates/transcript/transcript.php?storyId=255247261) (last visited on June 18, 2018). 11Anastasoff v. United States, 223 F.3d 898, 899 (8th Cir. 2000), vacated as moot on reh’g en banc, 235 F.3d 1054 (8th Cir. 2000). 12For example, the Minnesota Rules of Civil Appellate Procedure provide that “[u]npublished opinions and order opinions are not precedential except as law of the case, res judicata or collateral estoppel, and may be cited only as provided in Minnesota Statutes 1996, section 480A.08, subdivision 3.” Minn. R. Civ. App. Proc. 136.01(b) (2017). 13Amy E. Sloan, If You Can’t Beat ’em, Join ’em: A Pragmatic Approach to Nonprecedential Opinions in the Federal Appellate Courts, 86 Neb. L. Rev. 895, 898 (2008) (citing Statistics Div., Admin. Office of the U.S. Courts, 2006 Annual Report of the Director: Judicial Business of the United States Courts 52 (2007)).
14E.g., K.K. DuVivier, Are Some Words Better Left Unpublished? Precedent and the Role of Unpublished Decisions, 3 J. App. Prac. & Process 397, 399 (2001). 15Sloan, supra note 13, at 909-10. 16Association of Legal Writing Directors & Coleen M. Barger, ALWD Guide to Legal Citation (6th ed., Aspen 2017). Rule 12.13 addresses methods for citing cases that will be, but are not yet, published in hard copy. Note that the rules in the ALWD Manual produce citations identical to those produced when following the rules in the Bluebook.
17 E.g., State v. Butler, 416 P.3d 116, 133 (Kan. 2018) (citing a nonprecedential opinion as follows: “City of Hutchinson v. Bolinger, No. 111689, 2015 WL 3632324, at *3-4 (Kan. App. 2015) (unpublished opinion) (using K.S.A.
2014 Supp. 21-5202 [e] to define the necessary culpable mental state for furnishing alcohol to a minor).”18 See Section 6.5.5 on how to use string citations appropriately. 19This statement is most true about judges who sit on courts of last resort. The opinions of a trial judge or of an intermediate appellate judge, in contrast, may be more likely to be affirmed or reversed depending upon the authoritativeness of cases and other sources that they rely on. 20Mark Painter, The Legal Writer: 40 Rules for the Art of Legal Writing 47 (2d ed., Jardyce & Jardyce 2003). 21Arthur J. Goldberg, The Rise and Fall (We Hope) of Footnotes, 69 A.B.A. J. 255, 255 (1983). 22Abner Mikva, Goodbye to Footnotes, 56 U. Colo. L. Rev. 647, 647 (1985) (quoting Professor Rodell, quoted in Kenneth Lasson, Scholarship Amok: Excesses in the Pursuit of Truth and Tenure, 103 Harv. L. Rev. 926, 942 (1990)). 23J.H. Huebert, How to Persuade Judges in the Real World, 35 Ohio N.U. L. Rev. 829, 831 (2009) (book review of Antonin Scalia & Bryan Garner, Making Your Case: The Art of Persuading Judges (2008), which cites Scalia & Garner, at 35, and Richard A. Posner, Against Footnotes, 38 Court Rev. 24, 24 (2001)). 24Boyce F. Martin, Jr., Judges on Judging: In Defense of Unpublished Opinions, 60 Ohio St. L.J. 177, 193 (1999). 25Rice, supra note 2, at 61.