October 18, 2017

Good Advice, Better Advice: Rethink How You Use Authority

Briefs are too long. Some cases warrant lengthy briefing. Most do not. Shorter briefs are more than judicial preference.[1] Brevity strengthens your writing, clarifies your points, and pleases your audience.[2]

A rarely addressed problem is citing too much authority. When proofreading, many attorneys check a citation’s format and confirm it supports a proposition. But few assess whether to cut the citation or replace it with a better one.

Citations are about judgment. Consider these points.

String Citations Are Not a Problem; They Are a Symptom of a Problem

Nearly every legal writing CLE has a PowerPoint slide dedicated to the irredeemable brutality of string citations. Usually the presenter provides an exaggerated illustration like this:

Parties cannot waive the defense of lack of subject matter jurisdiction. Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006); Wisconsin Dep’t of Corrections v. Schacht, 524 U.S. 381, 382 (1998); Lightfoot v. U.S., 564 F.3d 625, 627 (3d Cir. 2009); American Fiber & Finishing, Inc. v. Tyco Healthcare Group, LP, 362 F.3d 136, 138 (1st Cir. 2004); Gardner v. U.S., 211 F.3d 1305, 1310 (D.C. Cir. 2000); Douglas v. E.G. Baldwin & Associates, Inc., 150 F.3d 604, 608 (6th Cir. 1998); Harris v. U.S., 149 F.3d 1304, 1308 (11th Cir. 1998); Chernin v. U.S., 149 F.3d 805, 812-13 (8th Cir. 1998).

Then the presenter condemns string citations for two to three minutes, with a verbal footnote that they are acceptable in rare circumstances like to survey multiple jurisdictions or to show a trend (or consistency) over time.

This advice is not wrong, but it can lead to wrong conclusions.

Astute attorneys hear the advice, return to the office, and dutifully apply it. They scan briefs for precisely what the presenter mentioned: a paragraph with a single sentence followed by a horde of citations spanning multiple lines. If they find a string citation, they cut it down or determine an exception applies. If they find no string citation, hurray! Either way, in the end the attorneys feel confident the number of citations used to support all the propositions is fine because there are no unhelpful string citations. That conclusion is a problem.

Worse, that conclusion misunderstands the problem. The CLE advice frames the problem as string citations. But the absence of unhelpful string citations only means there are no unhelpful string citations. It does not mean the number of citations is acceptable.

The problem is attorneys cite too much authority. Whether that authority appears in a string citation is irrelevant. After all, when does a series of citations become a string citation? After two? Three? Four? Do you restart the count after a new signal word? I do not know and I do not care because it does not matter. You must justify every citation, whether solitary or in a series.

Cutting one string citation from a brief fixes one spot and shortens your brief by a handful of lines. But editing all of your citations improves dozens of sections and can shed pages.

Less is More: Choose the Appropriate Type and Number of Authority

Shed your collegiate habits. Briefs are not a way to show how much research you did, or how smart you are. I understand the hours you spent researching the intricacies of replevin were tiring and frustrating. I understand how few people have the command of replevin you now possess. And I understand that this hard won mastery of replevin should go towards something. Fine, but not your brief.[3]

Your brief has one goal: persuade your audience.[4] If a citation does not help this goal, cut it. Have a reason for every citation you include.[5] Tie that reason to how the citation persuades your audience.

Not using every citation is counterintuitive. If you have the space you want to use every arrow in your quiver.  But too much authority weakens a brief.[6] Citations add length which means more time for your audience to lose focus and patience. You may lose credibility as your audience wonders why the brief is citing unnecessary authority. Too much authority also drowns substance in waves of citations.[7]

Consider a few examples.

Example 1:

A party must file an action for negligence within two years after the cause of action accrues. Section 13-80-102(1)(a), C.R.S. 2017; Colburn v. Kopit, 59 P.3d 295, 296 (Colo. App. 2002).

One proposition, two citations. Why cite two sources? Both are direct citations, meaning there is no signal (e.g. “see also”). The absence of a signal tells the reader the citations directly support the entire proposition. If they both support the entire proposition, you do not need two sources.

Choose one. If the General Assembly chooses a statute of limitations, it codifies this selection in statutes. These statutes bind courts. Here, the statute is clear. When Colburn states the statute of limitations, it is paraphrasing but not interpreting the statute. So the case adds nothing you do not get from the statute. The statute is the strongest authority. It is clear. Cut the case cite.

Example 2:

Courts dismiss negligence claims raised after the two year statute of limitations expires. Section 13-80-102(1)(a), C.R.S. 2017; Colburn v. Kopit, 59 P.3d 295, 296 (Colo. App. 2002).

Again one proposition, two citations. But the proposition is different. It speaks about the remedy courts apply to a tardy claim. The statute does not discuss (although perhaps it implies) the remedy. The case cites the statute, states the statute of limitations, and shows the remedy. It covers all the propositions you need.

Whether to also cite the statute is a judgment call. Although the case is probably sufficient, the statutory citation may help if a court wants to check for amendments or ensure Colburn correctly interprets the statute. This is a strategic decision and may depend on what your opponent contests.

Example 3:

A plaintiff may only succeed on a claim of denial of procedural due process if a state government injured or revoked a constitutionally protected property interest without proper procedural protections. U.S. Const. amend. XIV, §1; Schanzenbach v. Town of La Barge, 706 F.3d 1277, 1283-84 (10th Cir. 2013).

Only the case citation is necessary. The constitutional citation adds nothing. Case law, not the Constitution, establishes the contours of procedural due process. Unless your argument hinges on a textual analysis of the Due Process Clause (unlikely), there is no need to cite the clause.

Example 4:

The Due Process Clause prohibits state governments from depriving any person of life, liberty, or property without due process. U.S. Const. amend. XIV, §1. See also Schanzenbach v. Town of La Barge, 706 F.3d 1277, 1283-84 (10th Cir. 2013).

The citation to the Fourteenth Amendment without any signal tells the reader the Amendment directly states the proposition. The use of “see also” tells the reader the case supports the proposition, but does not directly state it. But a reader cannot tell why the case citation exists. It might add something; it might not. If you have a direct citation followed by a signal word with more authority, you will usually need to state why you included that new authority. Here, either add a parenthetical or cut the case citation.

Example 5:

A complaint must state with particularity the circumstances of a fraud.  F.R.C.P. 9(b).  Courts dismiss claims that fail to meet this heightened pleading standard. See, e.g., Rodriguez v. Bar-S Food Co., 539 F. Supp. 710, 720 (D. Colo. 1982). This requirement protects defendants’ reputations and puts them on notice so they can form a defense. Tatten v. Bank of Am. Corp., 912 F. Supp. 2d 1032, 1041 (D. Colo. 2012). Conclusory allegations are insufficient; the complaint must allege the time, place, and contents of the false representation. Conrad v. The Educ. Res. Inst., 652 F. Supp. 2d 1172, 1182-83 (D. Colo. 2009). The failure to identify the party who made the false statements requires dismissal. Id.

Five citations from four sources. This paragraph explains the general law on pleading fraud. A trial court is probably already familiar with these propositions and does not need a full backstory. Even so, surely one case supports all of these propositions. Do not cite five different sources when one suffices.[8]

Showing several courts have dismissed complaints that plead fraud adds little. After all, what if the other side could cite more cases where courts did not dismiss such complaints? This is a fact-specific analysis. What matters is how the law applies to the complaint in your case. If the complaint’s allegations are close to a case you found, great. If not, more cases will not make a difference.

The ideal authority is one case that supports all these propositions and dismisses a complaint with the most analogous allegations to your case. Next best is one case that supports all these propositions and dismisses a complaint for the reason you advocate (e.g. not identifying who made the false statements) even though the allegations are very different.

Meaningfully Choose Your Authority

If the answer to “Why is this citation here?” is “Because it supports the proposition” then you have not thought it through. This answer explains why you have a citation (as opposed to no citation). But it does not answer why you included this citation. Consider the same question rephrased: of the universe of all authority that supports the proposition, why have you chosen this one?

Step 1: Choose the Appropriate Type of Authority. Often multiple authorities lend support: constitutions, statutes, regulations, case law, legislative history, treatises, dictionaries, articles, etc. Have a reason why you chose one type of authority over another. Why cite a statute and not a case? Why a case and not a treatise?

Step 2: Choose the Appropriate Source. Once you decide on the type of authority, choose a particular source. For example, after you decide to cite case law you must decide which case to cite. Why cite this case instead of that case when both support the proposition? Potential answers include:

  • It is the most recent high court decision which makes it the most authoritative case law on point.
  • It is the seminal case that all the other cases cite.
  • We rely heavily on this case later in the brief so it will make the court’s life easier by having fewer cases to examine.

No one answer is better than the other and this list is not exhaustive. Attorneys may differ. Bottom line: have a reason for everything you do.


[1] “With the docket the way it is—and growing (federal court appellate filings went up again last year)—we judges can only read briefs once. We cannot go back and re-read them, linger over phrases, chew on meanings. Your main points have to stick with us on first contact—the shorter and punchier the brief the better.” Patricia Wald, 19 Tips from 19 Years on the Appellate Bench, 1 J. App. Prac. & Process 7, 10 (1999). See also Judge William Eich, Writing The Persuasive Brief, Wisconsin Lawyer (Feb. 2003), available at http://www.wisbar.org/newspublications/wisconsinlawyer/pages/article.aspx?Volume=76&Issue=2&ArticleID=614 (estimating judges may only spend thirty minutes on the first reading of a brief).

[2] “Repetition, extraneous facts, over-long arguments (by the 20th page, we are muttering to ourselves, ‘I get it, I get it. No more for God’s sake’) still occur more often than capable counsel should tolerate. In our court counsel get extra points for briefs they bring in under the 50-page limit. Many judges look first to see how long a document is before reading a word. If it is long, they automatically read fast; if short, they read slower. Figure out yourself which is better for your case.” Wald, 1 J. App. Prac. & Process at 9-10.

[3] “You do not write for publication. You do not write to show your colleagues how smart you are, how well you know the subject matter, or how stupid you believe the judges to be. All this may well be true. But the name of the game is ‘persuade the judge.’ You don’t score points for anything else.” Ruggero J. Aldisert, Winning on Appeal: Better Briefs and Oral Argument, 24 (National Institute of Trial Advocacy, 2d ed. 2003). “You’re not writing a treatise, a law-review article, or a comprehensive Corpus Juris annotation. You are trying to persuade one court in one jurisdiction. And what you’re trying to persuade it of is not your (or your junior associate’s) skill and tenacity at legal research. You will win no points, therefore, for digging out and including in your brief every relevant case. On the contrary, the glut of authority will only be distracting. What counts is not how many authorities you cite, but how well you use them.” Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 125-26 (2008).

[4] Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 59 (2008) (“The overarching objective of a brief is to make the court’s job easier. Every other consideration is subordinate.”)

[5] “Conciseness doesn’t mean fewer words; it is the omission of needless words.” Eich, supra n. 1.

[6] “A brief that is readable and to-the-point will make it much easier for the judges to understand and quickly grasp your points, and they will be encouraged to spend more time with your arguments. Unnecessary length, on the other hand, will often result in your strongest points getting lost in the shuffle.” Eich, supra n. 1.

[7] See Alex Kozinski, The Wrong Stuff, 1992 BYU L. Review 325, 326 (1992) (“Keep in mind that simple arguments are winning arguments; convoluted arguments are sleeping pills on paper.”); Patricia Wald, 19 Tips from 19 Years on the Appellate Bench, 1 J. App. Prac. & Process 7, 9 (1999) (“The more paper you throw at us, the meaner we get, the more irritated and hostile we feel about verbosity, peripheral arguments and long footnotes.”)

[8] “As for governing authority, if the point you are making is relevant to your reasoning but is neither controversial nor likely to be controverted, a single citation (the more recent the better) will suffice. Anything more is just showing off to an unappreciative audience.” Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 126 (2008).

 

Michael Blasie graduated from the New York University School of Law. He began his career as a commercial litigator and criminal defense attorney in the New York City office of Cooley LLP where he practiced in state and federal trial and appellate courts. After five years he moved to Denver where he currently works as a law clerk to the Honorable David J. Richman of the Colorado Court of Appeals. Michael also serves as a volunteer firefighter for the City of Golden.

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