Weave Adverse Case Law into Your Argument or Analysis

Happy New Year! Let’s continue our series on how to present case law. We’ve talked about the lingo for discussing patterns in the case law. We’ve noted that skilled advocates don’t just list cases, they summarize a body of law and give a global picture of the research. And we’ve also talked about the three key issues in any case discussion. (Remember? Facts. Facts. Facts.) Now let’s talk about how to handle the elephant in the room—adverse case law. Your ethical obligations require that you mention it, but how do you talk about it without hurting your case?

Adverse case law rarely deserves a dedicated introductory sentence that flatly states its holding. If you break adverse case law into a separate section or paragraph, you may find yourself arguing the other side’s case, no matter how carefully you distinguish that law. Instead, weave opposing authority into your argument and present it offensively by using transitional words such as however and although.

For example, if you are arguing that the corporate veil should not be pierced, you should not begin your discussion of a case allowing a pierce by stating, In Jones v. Nasty Corp., the court pierced the corporate veil where Nasty Corp. was undercapitalized. Rather, explain that Although Jones v. Nasty Corp. allows a court to pierce the corporate veil where a corporation is undercapitalized, our client—unlike Nasty Corporation—is adequately capitalized. Couching troublesome authority in an although clause helps dilute its impact. For example, you might say that Although courts will pierce where the corporation has committed fraud, Client X never misrepresented its identity.

If you “wrap” your discussion of opposing authority with language that helps your case, you will meet your ethical obligations without losing control of your argument.

-Marie

P. S. My Book, The Lawyer’s Essential Guide to Writing contains many fascinating tips like this!

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Italicize case names. Yes, italicize. Don’t underscore.

Old habits die hard. When I suggest that lawyers italicize case names, they often react in horror. But the modern preference is to italicize case names, rather than underscore, although either is correct. I know. You still don’t believe me. Since my word on this issue may not be enough to slant you (pun intended!) in the proper direction, here’s the reason why.

In the old days (before computers), lawyers underscored case names and introductory signals because typewriters and early word-processing programs could not italicize. So briefs that were professionally printed used italics, but briefs that were typed in-house had to make do with underscoring. Although most style manuals say that case names may be italicized or underscored, it makes sense to drop the obsolete convention of underscoring now that typewriters are being turned into jewelry.

All the authorities agree on this. The style guides still allow underscoring out of deference to anyone who may still be typing on an old typewriter. Contrary to popular perception, The Bluebook does not require underscoring. It gives the option of either underscoring or italicizing (see bluepages at front, B13 on typeface conventions), but it then confuses the issue by using underscoring throughout. (Did you expect anything but confusion from The Bluebook?)

The ultimate guru on all things related to the design of legal documents is Matthew Butterick. (His book, Typography for Lawyers, is groundbreaking. You should buy it.) He insists on italics for case names and also explains that the Bluebook does not require underscoring.  Bryan Garner also endorses italics. And Supreme Court briefs use italics. Here’s an example: Supreme Court Brief using italics.

Italics follow the design principle of keeping the fonts on a page as simple and consistent as possible. Italics are just easier on the eye.

So tilt away!

-Marie

P.S. My book contains many other fascinating tips like this.

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A 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. Try these frequently used phrases:

• In Smith v. Jones, this Court squarely addressed. . . .
• The First Circuit has long recognized. . . .
• No reported cases hold that. . . .
• Only one reported case holds that. . . .
• The most analogous cases hold that. . . .
• The Ninth Circuit has long expressed a strong preference for. . . .
• Although this Court has expressed a strong preference for . . . , it has frequently allowed . . . under similar circumstances.
• This Court has entertained. . . .
• This Court has considered. . . .
• This Court is poised. . . .
• The Supreme Court has not been sympathetic to. . . .
• This Court imposes. . . .
• This District follows a recent trend. . . .
• The court cautioned against. . . .
• No court has directly addressed. . . .
• As a general rule, the courts have. . . .
• That decision represents an extreme departure from. . . .

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Citations: in text or in footnotes?

Put citations in the body of the paper—not in footnotes. Yes, citations are clunky and disruptive. But they are also a substantive part of legal writing because they show the weight and authority of the case you are citing. Therefore, case citations belong in text, where your reader can find them easily.

Some recent opinions follow a trend to move book and page references to footnotes. Although moving book and page information to footnotes may make the paragraph itself more readable, dropping citation information to footnotes violates the essential design principle of proximity because it requires the reader to jump back and forth between footnote and text to piece together the complete citation. Thus, footnotes defeat the goal of keeping the reader’s eyes moving seamlessly through the paper.

So if the case law is important to your paper—and the case law is essential in any research memorandum or any paper that will be filed in court—keep your full citation in prose. Although citations admittedly disrupt the flow of legal writing, it is more disruptive to require the reader to jump between text and footnote.

In business law papers, put cases in footnotes if your colleagues do so. Business law papers routinely drop citations to footnotes because transactional attorneys may be less concerned about the case law than about the structure of the deal. Follow the leader and use the format your colleagues use.

Never use endnotes. Citations should never go at the end of your paper. It’s just too far for the reader to travel.

Expect citation format to change for the better. As we move to a paperless world and our readers grow accustomed to reading briefs and memoranda online, our method of citing cases should change. My book talks about the changes that we should expect to see. . . .

Quote with Care.

Quote sparingly. Judges and senior attorneys want you to summarize the cases for them. Quote from cases only if the language is extremely significant.

Introduce quotations with substantive sentences. The sentences that introduce your quotation should summarize the quoted language. For example, introduce a quotation with a sentence, such as In Smith v. Jones, the First Circuit also outlined the factors that determine whether more than a corrective disclosure is required. An effective introductory sentence spares the reader the agony of actually reading the quote. Avoid introducing quotations with bland phrases that tell nothing about the material to follow, such as In Smith v. Jones, the court held that . . . .

Avoid long quotations. Long quotations beg not to be read. Readers love block quotes because the block format highlights just what part of the page they may skip. 

Block long quotes. If you must quote a long passage of fifty words or more, set off that quote in block format: double space before and after the quote, single space within the quote and indent five or ten spaces at the left and right margins.

Think of your cases as places.

Lawyers use shorthand to avoid cumbersome references to case law or procedural history. Think of your cases as places and use here to refer to your client’s case and there and where to refer to the precedent, as in There, the court held that . . . . or Here, by contrast . . . . Avoid phrases such as the instant or present case. Simply say this case.