Handling case law is an art form and the lawyer who can do it well is not only an advocate, but an artist as well. So let’s talk about the techniques that skilled advocates use to present case law—techniques that lead to a deep and concise overview of large bodies of research. Their secret? Skilled advocates give an overview of a body of law, rather than simply listing cases.
Give a Global Picture of Your Research
Often the most important part of your research is what you did not find. If no court has ever ruled against your position, then you miss an opportunity if you simply cite the 1,001 cases that favor your position. Emphasize the absence of any opposing authority by stating, for example, that No court has ever declined to find personal jurisdiction over a defendant who maintained an office within its jurisdiction. If only two cases go against you, emphasize the paucity of opposing authority by explaining Only two reported cases have ruled that . . . . If the authority is split, search for the factual distinctions and, if you can, explain that The most analogous cases hold that . . . . If you are writing a research memorandum and no cases go your way, you must flatly disclose the absence of helpful authority.
Discuss the Most Recent or Most Important Law First
Unlike in the fact section of a brief—where we often present the detailed facts in chronological order—you should not present your cases chronologically. Instead, give your readers a snapshot of current law by beginning with the most important or most recent cases. Provide historical context only if that context helps explain current law.
Learn the Lingo for Talking About Cases
Discussing case law is an art form and shorthand phrases make your job easier, as long as you don’t slip into legalese. A case can be distinguishable, controlling, relevant, analogous, seminal or binding. Discussing patterns in the case law is even more challenging so certain well-used phrases—such as this court squarely addressed or this court has long recognized—are helpful. (Click here for a list of the Lingo for Talking About Cases.)
Discuss Key Cases in Prose, Rather Than in Parentheticals
Your most important cases should always be discussed in prose, rather than in a parenthetical. The decision to discuss a case in prose shows that you assign a higher value to that case than to the cases that you discuss in parentheticals. But even if you discuss a case in prose, you might still need to write parentheticals to flesh out minor facts or the procedural history of the case. (And, yes, you should use parentheticals to share the facts of minor cases.)
Use Signal Phrases Every Time You Introduce a New Case
Your readers want to know immediately whether a case is the leading or most analogous case or whether it narrows a concept, states a different position, simply provides an example or repeats earlier information. Therefore, always assign a value or weight to the case by using signal phrases that show why you are citing that case. Use phrases such as in the leading case, in an analogous case, in particular, by contrast, however, for example, recently, also or again. But, again, be careful not to begin every sentence in a paragraph with a signal phrase or you will compromise the rhythm of your writing.
Summarize Case Law Succinctly
In Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701, 748 (2007), Justice Roberts summarized the law before Brown v. Board of Education of Topeka with a gifted economy of words. He explained simply, “Before Brown children were told where they could and could not go to school based on the color of their skin.” 551 U.S. at 747. If Justice Roberts can reduce decades of constitutional jurisprudence to a few pithy words, you should be able to discuss a statute-of-limitations case or the doctrine of piercing the corporate veil in a sentence or two.
We’ll talk another time about how to discuss the facts of cited cases. Prose or parenthetical? Stay tuned ….