Using Cases

Lawyers tend to load their briefs with lots of cases to look impressive. The result can be an unreadable mess. Following certain principles can make your use of cases more effective.

Lawyers often argue that judges are "bound" by prior opinions. But an appellate Justice rarely sees it that way. She doesn't like being told that she is a mere mechanic, that she must mindlessly apply a rule to a set of facts. She does not appreciate a brief that tells her “Here's the rule. Simply apply the words of the rule as I tell you to, and reverse the trial court.” She will find it pretty easy to "distinguish" cases when she wants to.

So use cases to convince her to want to decide your case your way. Use cases for their persuasive value, to support your policy argument. Use the opinion's reasoning instead of just its holding.

Behind every rule is a reason. Cases and treatises might explain why the rule is what it is. Find a good explanation and include it in your brief. Keep it short. Just a sentence or two can motivate the judge to see the justice underlying the rule and – most important – why it would be unjust to decide the appeal against your client.

After you state the rule and explain the reason behind the rule, apply that reason to your facts. Here's an example:

"The trial court erred by overruling Appellant’s hearsay objection to Officer Brown's testimony that 'Ms. Smith told me that [Appellant] had run the red light.'

In Alpha v. Beta (1983) 121 Cal.App.3d 454, 459, the court quoted a noted authority, who wrote that 'In order to encourage witnesses to put forth their best efforts and to expose inaccuracies that might be present, the Anglo-American tradition evolved three conditions under which witnesses are ordinarily required to testify: oath, personal presence at the trial, and cross-examination. The rule against hearsay is designed to insure compliance with these ideal conditions.' McCormick, Evidence, §245.

Ms. Smith met none of these conditions. She took no oath. She was not present at trial. And she could not be cross-examined. Therefore, she was not encouraged to put forth her 'best efforts' to tell the full true story to the jury, and Appellant was deprived of the right to expose any inaccuracies in her story by cross-examining her. Admission of Officer Brown’s hearsay testimony was error."

When you cite a case, make it clear why you are citing it, in the text surrounding the citation. Consider this example:

"The evidence showed that Respondent Cole was negligent. Jones v. Smith (1981) 52 Cal.App.2d 444, 450-451."

The citation to Jones v. Smith might be called a "floating" citation. It just floats in the brief. It has no persuasive value, because it gives the judge no idea of what it stands for or why it is there. Do you really expect the Justice to look for the case, read it, and try to figure out why you cited it? Would you do this if you were the Justice?

From the way the above statement is written, it would appear that Jones v. Smith held that Cole was negligent! As Smith was decided many years before Cole acted, and Cole was not a party to the Jones appeal, this interpretation of the above statement is obviously wrong. But what is the right interpretation?

Perhaps the attorney who wrote the statement meant that one of the holdings in Jones, if applied to the facts of this appeal, would somehow establish that Cole was negligent. If so, he should have said so precisely. Thus,

"In Jones v. Smith (1981) 52 Cal.App.2d 444, 450-451, the court held that exceeding the posted 65 mph speed limit by only ten miles per hour is not negligence per se. Therefore, because Cole exceeded the limit by only seven miles per hour, the trial court erred in ruling that this was negligence per se."

You can briefly indicate why you are citing a case is by summarizing its holding or facts in parentheses right after the citation. For example, "See Jones v. Smith (1981) 52 Cal.App.2d 444, 450-451 (exceeding 65 mph speed limit by 10 mph is not negligence per se)."

Judges are not clerks. They want to do the right thing. Use cases to persuade them that ruling for your client is the right thing - and show them how each case supports the justice of your cause.

by M.A.T. Legal Director Myron Moskovitz