Choosing and Using Case Authority:

Sarah Hofoadter is co11nsel with the California Appellate Law Group LLP, a 15-lawyer appellate boutique with offices in San Francisco and Los Angeles. Sarah spent more than a dozen year, as a research and staff attorney on the California Courts of Appeal and the Ninth Circuit.

Tips and Ethics for Litigators By Sarah Hofstadter

Under both California and federal appel­

late rules, legal arguments in briefs muse be

supported by citations to appropriate author­

ity. (Fed. Rules App. Proc., rule 28(a)(8)(A);

Cal. Rules of Court, rule 8.204(a)(l)(B).) And

in trial courts, a memorandum of points and

authorities or ocher written argument carries

liccle weight if it cites no authorities.

In any court, when the relevant authority

is case law, selecting the right cases co cite, and

using chem correccly and effectively, is not a

simple endeavor. It requires the exercise of skill

and judgment, and due concern for ethical

considerations.

Tips: What is the best opinion to cite, and the most effective way to use it?

Happy is the lawyer whose research dis­

closes a recencly published appellate opinion

from the correct jurisdiction chat is not subject

to further review, has never been overruled or

criticized, is squarely on all fours both legally

and factually, and holds in the client's favor. If you find such a case, chat's all you need. Don't

clutter up your brief or memorandum with un­

necessary sering citations to ocher authorities.

On the ocher hand, if the issue co which

your dream case relates is an important one,

don't simply cite the case and leave it at chat.

Summarize the opinion's faces, reasoning, and

holding in the text of your argument, and show

how it supports your position. It may be help­

ful to quote che most important language (with

scrupulous accuracy) , but keep your quotations

brief, and use chem sparingly. Avoid long sin­

gle-spaced block quotations, as they tend to

make your audience's eyes glaze over.

Finding a case chat makes your point so

easily is a relatively rare treat, however. More

commonly, you will need to cobble together

the support for your legal arguments from a

hodgepodge of opinions with one or more

drawbacks: they come from ocher jurisdictions,

are unpublished, are decades old, support one's

argument only partially or by analogy, include

adverse rulings on ocher points one is arguing,

or have been criticized or contradicted by lacer

opinions.

Each situation is unique, and there is no

magic recipe for dealing with these situations.

This is where informed, experienced judgment

is key. Here are a few suggestions.

The Journal of the Li tigation Section of the Californ ia Lawyers Association / Califo rnia Litigation Vol. 32 • No. 3 • 2019 // 37

• Multiple authorities: Citing more

than one or two cases to support a

particular point is unnecessary, and

couns generally dislike string citations.

But you may run across a situation in

which your argument needs to rely on

multiple cases, each of which suppons

a particular aspect of your point. When you need to do that, be sure to explain

what you are doing. Depending on

the importance and complexity of the

issue, you may need to discuss each case

in the text. At a minimum, be sure to

include an explanatory parenthetical

after each citation, so the court does

not have to guess which case supports

what part of your argument.

• Support by analogy: If the cases you

have found are only analogous to your

situation, you can't just cite them and

move on. You have to explain in your

brief or memorandum what it is that

they hold, and exactly how they sup­

port your position. Don't cake the risk

chat the court will look ac your cited

cases and fail co grasp how they fie into

your argument.

• Other jurisdictions: If you can't find

a case on point in your own jurisdic­tion, it's fine to look elsewhere. Bue be

aware that such a case is only persuasive

authority. Don't just cite it. Bolster its

weight as best you can by showing chat

ic is consistent with analogous law or

public policy within the jurisdiction,

finding enough ocher cases in varied

jurisdictions to establish chat it states

a majority rule, or citing an opinion,

treatise, or law review article chat com­

mends its reasoning.

• Unpublished opinions: The rules on

whether and when you can cite an un-

published opinion vary from court to

court and from situation to situation.

For example, although you can't cite an

unpublished California Court of Appeal

opinion co any California court, you

can cite it in federal court, albeit only

as persuasive authority. Bue even when

you can't cite an unpublished opinion,

there are other ways it can be helpful.

You can use it as a research tool to find

authority that you can cite, or you can

draw upon its reasoning and language

in crafting your own argument.

• Age: If the only binding precedent on a

point is more than a couple of decades old, find a newer case (even if it's in a

lower court or in another jurisdiction)

and cite them both. That gives your

reader some assurance chat the older

case has not been superseded by lacer

jurisprudential developments. This is

another way chat uncicable unpublished

opinions can be useful; recent opinions

that rely on your ancient authority may

lead you co newer authority that you

can cite.

• Adverse ruling on another point: If there is ocher, equally valid and helpful

authority available, avoid citing a case

that is helpful co your position on one

point, but creates problems for a differ­

ent pare of your argument. You may well

regret calling the case co the attention

of opposing counsel and the court. Bue

if you decide you need to cite it because

you can't find an adequate substitute,

don't just ignore the problem. Ac a

minimum, drop a footnote explaining

why che adverse aspect of the case is

inapplicable or incorrect. At worse, you

may have to concede on chat issue.

38 // California Litigation Vol. 32 • No. 3 • 2019 // The Journal of the Litigation Section of the California Lawyers Association

• Subsequent criticism: Obviously, if a

case has been flatly overruled or disap­

proved on the point for which you are

citing it, you should nor be citing it at

all . Bur if a later opinion merely dis­

agreed with, criticized, or distinguished

the opinion on which you want to rely,

you may need to find a way of defus­

ing the issue. This calls for an exercise

of judgment regarding a number of

factors, including the likelihood that

opposing counsel will cite the adverse

authority or the court will come across

it independently, and the degree of ease

with which you can counter the adverse

authority.

Ethics: What traps do I need to avoid?

To build and maintain your credibility with

the court, you must - among other things -

be meticulous and candid in your use of case

authority. The mechanical requirements for

this are straightforward. Making sure you don't

cite overruled or otherwise invalid authority is

a simple matter, thanks to computerized legal

research services, but it must not be neglected.

If you find an unpublished opinion you want to

cite, make sure the applicable rules permit you

to do so, and comply with any requirements to

furnish copies.

Merely adhering to the mechanical rules is

not the end of the story, however. For example,

if there is recent published authority in your

jurisdiction that is adverse to your position, it

is both dishonest and risky to simply ignore

it and hope opposing counsel and the court

don't come across it. If it's binding and squarely

on point, and you represent the appellant,

find another issue co raise, or another way to

frame your argument. If you represent the

respondent, concede the issue and find another

basis on which the court can affirm. If it's not

binding, or distinguishable, confront it directly

and explain why the court should not follow it

in your case.

Another aspect of maintaining one's credi­

bility with the court, when it comes to the use

of case authority, is resisting the temptation

to mischaracterize the holdings or language of

an opinion. Using ellipses or brackets co gloss

over the unfavorable aspects of a quotation

will not fool the court, and will only get you

in trouble. Paraphrasing a holding inaccurately,

or misstating its factual or procedural context,

is no better.

Finally, another pitfall is citing a case you

found in a treatise or other secondary source

without actually having read it. Treatises can

be extremely helpful as research shortcuts, bur

they do not always characterize a case correctly.

There simply is no substitute for reading cases

yourself before you cite chem. If ir turns out rhe

treatise relied on dictum, stretched the holding,

or misread the opinion, you may be able to find

ocher authority to support your point. Bur if

you cite the case without reading it, you will

lose that opportunity, and your credibility with

the court will be compromised.

Conclusion

Crafting a persuasive legal argument

through the skillful handling of case authority

is a key component of the art of legal writing.

Choosing the best cases to cite, and using them

to maximum effect, cakes attention and effort,

but this aspect of your legal writing can be crit­

ical to the success of your arguments. If you are

uncertain of your skills in this regard, consider

consulting with an experienced and successful

brief writer to gee the coaching you need. You

and your clients will be glad you did.

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