The strength of any piece of legal writing turns on the depth and breadth of the research that supports the writing. But legal research is about much more than simply finding cases or presenting long lists of authority. Real understanding of the case law requires that you think outside narrow legal categories—such as intent, misrepresentation or reliance—and that you present the big-picture view of a body of law.
How do you get to that big picture view? You must focus on fact, rather than theory. Here’s one technique that may help you unearth the big picture.
Divide Your Cases into Two Categories: For You and Against You
Your key cases will generally fall into two categories: those in which the court ruled for the analogous party and those in which the court ruled against. So arrange your cases into two groups: cases which help and cases which hurt or yes and no. Within your yes and no groups, arrange your cases in order of importance. Think about your yes cases (and later, your no cases) as a whole. What case have you put first? Why? Is it the most analogous case? The leading case? The most recent case?
Review Each Group as a Whole to Identify Factual Trends
Now look for the factual distinctions between your yes and your no cases. For example, how egregious must palming off be before it justifies piercing the corporate veil? Is a court more likely to find reliance where a buyer was unsophisticated? If so, just how unsophisticated must the buyer be?
By considering each group of cases as a whole, you will see factual patterns that are not apparent from reading any single case but go to the core of a court’s reasoning. If you know these factual patterns, you can comment authoritatively on the reasons behind the law, rather than simply parroting back citations and vague legal theory.
Yes and No? Isn’t that too simple?
It’s so simple that it clarifies complex ideas. For example, Thurgood Marshall and his colleagues relied on factual distinctions to make history in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954). There, Marshall and his colleagues had little precedent going their way. If they organized their research into yes and no cases (and perhaps they did), their no pile would have been huge and their yes pile would have been empty. Since they had little law on their side, they did what brilliant advocates do. They argued the facts.
In their oft-cited brief (also cited in Steven Stark’s, Writing to Win), Marshall and his colleagues effectively dismissed the Board’s many equal protection cases by categorizing them as simple “nuisance cases, sewage cases and cases of overhanging cornices”—a “cautious calculation of conveniences” that could not compare to the rights of children “to be treated as entire citizens of the society into which they have been born.”
Look for Patterns in the Facts
Obviously, you must identify factual analogies between your case and the precedent. However, you must also identify factual trends in the precedent. For example, if you are asking the court to pierce the corporate veil, review all cases in which the court did pierce the veil to identify any facts that will support a pierce. Then give the court concrete reasons to accept your argument by focusing on facts. For example, say “A court may pierce the corporate veil whenever a company’s capitalization falls below a certain ratio.” Avoid generic statements of law, such as “A court will pierce the corporate veil to prevent fraud.”
So – divide and conquer!
P.S. My book, The Lawyer’s Essential Guide to Writing, contains lots of yeses and nos.