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Case LawAnalysis ThatWorks

BY RANDALL H. WARNER

Cites for Sore EyesCites for Sore Eyes

Randall H. Warneris an appellate

practitioner at JonesSkelton &

Hochuli, PLC

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Analyzing and citing case law is one of the first things we learned to do inlaw school. We learned to sift material facts from those that have no bearing on the issue athand. We learned how to tell good law from bad. We learned the trusty “IRAC” formula—issue, rule, analysis, conclusion. And, more than anything, we learned the fine art of dis-tinguishing cases that don’t go our way.

Having mastered these skills, we give them little thought anymore. Sure, we use caseanalysis skills intuitively in briefs and legal memoranda, just as we use what we

learned in Driver’s Ed when we’re behind the wheel. But who couldn’timprove their driving with a course at the Bondurant school?

This article goes beyond the ABCs of case citation.Here are some specific tools for using case

law to your best advantage.

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When To Cite, andHow Much?Lawyers typically have two problems whenit comes to citing case law: citing too muchand citing too little.

Some lawyers never cite cases. Theystate the law as if it were self-evident.Others insist on a case citation for everyproposition. Their writing is full of stringcitations that interrupt the flow of theargument. Still other lawyers insist ongoing through IRAC for every case they ortheir opponent cites, no matter howimportant the case or the proposition forwhich it stands.

Thus, the first rule of case citation:Know when to say when.

A good rule of thumb is that you needa case for every legal proposition a judgemight question. For example, in a motionfor summary judgment, you rarely need tocite Orme School for the summary judg-ment standard. I’d bet dollars againstdoughnuts that the judge has heard of thatcase before, so you are just wasting his orher scarce time. By contrast, the judge maynot know that Arizona generally followsthe Corbin approach to contract forma-tion. A citation for that proposition wouldbe in order.

How much detail should you go intoabout the case? That depends on three fac-

tors: (a) how important the proposition is,(b) how well established the proposition isand (c) how intuitive (or counter-intuitive)the proposition is.

For example, if the rule you are citing isreally important and somewhat debatable,you should probably go into some detailabout the case law that supports it. Adetailed discussion also might be appropri-ate if the proposition is somewhat impor-tant but contrary to what most lawyersthink, if for no other reason than to con-vince the court you’re not just making itup.

On the other hand, if the rule is notreally in dispute, there may be little reasonto give the case full treatment, even if thepoint is critical. Or if the point is minor, asimple citation with a parenthetical mightbe in order even if the proposition is notthat well established.

The One-LinerSo now you’ve decided a case citation isnecessary. How much detail should youprovide about the case?

I tend to catagorize case citation intothree levels of increasing detail: the One-Liner, the Half Monty and the Full Monty.

The One-Liner consists only of a one-line description of the rule for which youare citing the case. That one line can be inthe text before the citation or in a paren-thetical after the citation. For example:• Zamalloa v. Hart, 31 F.3d 911, 913

(9th Cir. 1994) (a motor carrier lesseeis vicariously liable for lessor’s negli-gence as a “statutory employer”).

• Battery requires an intent to cause aharmful or offensive contact. Johnson v.Pankratz, 196 Ariz. 621, 623, 2 P.3d1266, 1268 (App. 2000).

The essence of the One-Liner is that itcontains no description of the case andnothing about its facts or its reasoning. Itis simply a citation of the case for a singlelegal proposition that is stated somewherein it. For this reason, the one-liner is mostappropriately used for points of law thatare relatively undisputed, uncomplicated

or of minor significance to the pleading.A One-Liner citation should always

include a “jump cite” or “pin cite”—a cita-tion to the page on which your proposi-tion may be found. Making the judgesearch the whole case to figure out whyyou cited it is rude and unwise.

The “Full Monty”When thorough case treatment is warrant-ed, I use an approach I call the “FullMonty.”

The Full Monty has nothing to do withfrontal nudity. It is a tried-and-true recipefor addressing case authority completelyand concisely in legal pleadings. That isnot to say there is no craft in discussingcase authority; there is. And it is no crimeto deviate from the formula when appro-priate. But you will never go wrong usingthe Full Monty.

The elements of the Full Monty are:(a) a transition statement,(b) a brief recitation of facts,(c) the procedural posture of the case,(d) the case’s disposition,(e) the court’s holding and reasoning,

and(f) a juxtaposition with your case.

The following is an example:Horner v. Kentucky High SchoolAthletic Ass’n, 43 F.3d 265 (6th Cir.1994), is on point. The plaintiffs inthat case were female high schoolstudents who claimed the schooldistrict discriminated against girlsbecause there were more sanctionedboys sports than girls sports. Thetrial court dismissed their Section1983 claim, finding no evidence ofintentional discrimination. TheSixth Circuit affirmed. It noted thatthe inequity between boys and girlsresulted from a neutral policyrequiring a certain level of interestbefore a sport would be sanctioned.Thus, there was no evidence that theschool district created that policywith the purpose of discriminatingagainst girls. 43 F.3d at 276.

The judge’sinterest may well beexhaustedbefore the pagelimit is.

Case Law Analysis That Works

Like the rule in Horner, the sin-gle restroom at Fire Station B favorsneither men nor women. For thisreason, the Court should grant sum-mary judgment.

Let’s examine that discussion.First, there is a transitional statement:

“Horner is on point.” A transition like thisis critical but often overlooked. It makesno sense to launch into a case discussionwithout first telling the judge why you aredoing so. The transitional statement—“Horner is on point,” “An analogous caseis Horner v. Kentucky,” or “The Hornercase is inapposite”—tells the judge whereyou are going and gives him or her a rea-son to pay attention to what you are aboutto say.

Next, you have to tell the court whatthe case is about in one or two sentences.Here, the tendency of most lawyers is to beover-inclusive, but you have to pare itdown to the bare essentials. The judge haslimited time to devote to your pleading. Itis hard enough for him or her to keepstraight all the facts of your case; don’tconfuse the judge with excessive factsabout all the cases you are discussing.Dates are usually unimportant, as arenames. The shorter and more vivid yourdescription of the facts, the easier time thejudge will have comprehending andremembering them.

Third and fourth, you almost alwayshave to include a short statement of theprocedural posture and disposition of thecase. The holding of the case depends, forexample, on whether the trial court decid-ed the issue on a motion to dismiss, amotion for summary judgment or after abench trial. It matters whether the appel-late court was affirming a grant of summa-ry judgment or a denial of a motion forjudgment as a matter of law.

The statements of the procedural pos-ture and appellate disposition need not belong and often can be combined. Forexample, they may be simple: “Affirmingsummary judgment for the plaintiff, thecourt held … .” That tells the judge suc-cinctly that it is a summary judgment case,that the trial court granted summary judg-

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ment for the plaintiff, and that the appel-late court is affirming that grant of sum-mary judgment.

Fifth, you must describe the court’sholding and reasoning. Most lawyers arebest at this part. In the Horner casedescribed above, the narrow holding isthat the facts of that case did not state aSection 1983 claim. The broader reason-ing—which is why that particular case wascited—is that a neutral policy does not suf-fice to show purposeful discrimination,which is required to prove an equal pro-tection violation. Again, it is important tostate the holding and reasoning as concise-ly as possible. The opinion may contain ahalf-dozen policy reasons why it reachedthat result, but you’ve got to figure out away to encapsulate it so that a busy trialcourt judge can grasp it immediately andremember it.

Finally, if you’ve gone to the trouble toFull Monty the case, it is often useful tojuxtapose the case you are describing withyour case. Don’t assume the judge willconnect the dots. You have to tell thejudge exactly why the case you have justdescribed is on point—or why not. Youcan do this with a simple transition state-ment: “Like the Horner case …” or “Thiscase differs from Horner because … .”

The “Half Monty”Somewhere between the One-Liner andthe Full Monty is the Half Monty.

Sometimes the particulars of a case areimportant enough to describe, but not soimportant that the case justifies a full para-graph of Full Monty treatment. After all,most courts have page limitations, and thejudge’s interest may well be exhaustedbefore the page limit is.

The Half Monty is a way of describinga case in one or two sentences. It tells thereader just enough about the case to get agist of its holding and reasoning withoutgoing into great detail. For example:• See Pinder v. Johnson, 54 F.3d 1169,

1176 (4th Cir. 1995) (failure to safe-

guard children from ex-boyfriend wasnot due process violation; no “specialrelationship” existed).

• State v. Clary, 196 Ariz. 610, 2 P.3d1255 (App. 2000), provides additionalsupport by holding that restraining asuspect on the floor during a blooddraw did not violate due process.Although only the forcible nature ofthe blood draw was at issue, the courtnoted that a phlebotomist took theblood at a police station. 196 Ariz. at611, 2 P.3d at 1256.

The Half Monty is ideal for citing or dis-tinguishing a number of cases in rapid suc-cession.

Foreign Authority:The “One-Two Punch”So far, we have talked about how to cite acase with the appropriate level of detail. Wenow turn to the problem—encountered byanyone who has ever tried to find anArizona case right on point—of how bestto cite non-Arizona cases.

The problem with foreign authority isthat your opponent can always say the caseis not controlling in Arizona. The solutionto that problem is the “One–Two Punch.”That involves citing a non-Arizona casethat is factually or legally on point in tan-dem with an Arizona case that, while noton point, relies on the same legal principleas the non-Arizona case. Take the follow-ing example:

The rule in Arizona is that a plaintiffcannot recover lost profits based onspeculation or conjecture. RanchoPescado, Inc. v. Northwestern Mut.Life Ins. Co., 140 Ariz. 174, 186,680 P.2d 1235, 1247 (App. 1984).Applying the same rule, the TexasSupreme Court recently refused toallow lost profits in a case indistin-guishable from this one. See FlyingBob’s Armadillo Farm v. The TexasRoadkill Ass’n, 838 S.W.2d 901,903 (Tex. App. 1998) (affirmingjudgment as a matter of law on lost

profits claim where plaintiffs baseddamages only on pro forma projec-tions).

The Rancho Pescado rule regarding lostprofits is well established. Although thatcase was not factually on point in theexample, a Texas case relying on the exactsame rule was on point. In this way, theTexas case becomes almost as good as anArizona case, because it is an example ofhow a court applied an established Arizonarule to facts just like ours.

This is the One–Two Punch. Note that,in the example, the Arizona case is cited asa One-Liner (there is no detail about thefacts of Rancho Pescado), whereas theTexas case is cited as a Half-Monty. Werethe issue important enough, the discussionof the Texas case could have been expand-ed to Full Monty treatment.

You sometimes hear lawyers say that acertain jurisdiction’s case law is persuasivein Arizona because of that jurisdiction’sproximity to Arizona. This is not exactlyright. If cases from a nearby jurisdiction arepersuasive, it is not because of the proxim-ity to Arizona but because of the similarityof that state’s law. The best foreign case isone that applies the same rule of law thatArizona applies, be it from California orConnecticut. That’s what the One–TwoPunch is all about: It is a way of connect-ing non-Arizona authority to Arizona law.

Of course, there are issues for whichthere is no controlling legal principle inArizona. In that case, you may end uparguing whether Arizona should adopt theWisconsin approach or the Californiaapproach. But there is almost always a wayto link the good non-Arizona authority toArizona law. The more you can do that,the more persuasive your non-Arizonacases will be.

When and HowTo QuoteOkay, you have now used the Full Montyeffectively and concisely, One-Liners whereappropriate, and the One–Two Punch to

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Case Law Analysis That Works

connect your non-Arizona cases to Arizonalaw. When, if at all, should you quote thecases?

Some lawyers over-quote. If your briefcontains one or more block quotes onevery page, you are over-quoting. And ifyour case discussion consists of 15 lines ofa block quote, followed by the sentence“The court went on to hold,” followed by20 more lines of block quote, you areunquestionably abusing your quoting priv-ileges.

Quotations should be used sparingly tomaximize their effect. A good rule ofthumb is that you should quote only whenthe court might doubt that your descrip-tion of the case is accurate, or when theopinion’s language is just so juicy and onpoint that you could not say it better ormore concisely yourself.

As to the first reason, a quotation is away of saying to the court, “Don’t take myword for it, here’s what the opinion actu-ally says.”

As to the second, you should alwayslook for a way to encapsulate the court’sholding more concisely. Quote too often,and you just look lazy.

When you do quote, don’t leave some-thing critical solely in the quotation. It ishuman nature that many of our eyes glossover quotations, especially block quotes,and by leaving a critical point inside thequote you take a chance that the judgemight not read it. Instead, state the pointin the text, and then follow it up with aquotation that adds authority to it.

Accuracy, Accuracy,AccuracyOne final point must be made. When cit-ing case law (actually, when citing any-thing), the importance of being accuratecannot be over-emphasized. The judgemay not read all your cases, but then againhe or she might. It doesn’t matter howmany cases you describe accurately; theone they’ll remember is the one you gotwrong.

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