Wednesday, August 13, 2014

Selecting A Case To Cite

A question that comes up pretty often from law students in legal writing classes is, "how do I know which case to cite?"

This is a good question and one that really depends on what cases are found during the research process. I ran across a succinct article a few years back that does a pretty good job of discussing how to select cases to cite.

From the article:
"Most legal writers seem to have developed an instinct for which cases to pick and which to discard. Moreover, the considerations that the writer consciously or subconsciously brings to bear on which cases to include in legal citation are more complicated than merely citing to the most recent case from the highest court. These considerations probably begin with an informal categorization of all the cases found in the process of researching a given issue."

The article then goes on to discuss categorizing cases. "The cases supporting a given proposition of law might roughly be categorized as follows:

Seminal Case--This is generally the first case from the highest court to have decided the issue and stated the proposition of law in question. If the proposition was itself a reversal or revision of earlier authority, the seminal case is the reversing or revising case. As the first case to have stated the proposition in question, the seminal case has generally gone into some depth in analyzing the issue and the court's rationale in a manner that might not be repeated in later cases.

Parroting Cases--With a common proposition of law, numerous cases will have simply parroted the language of the seminal case, adding little or nothing to the analysis.

Bolstering Cases--In addition to parroting seminal authority, the bolstering case adds new reasoning and analysis to support the underlying proposition of law.

Reformulation Cases--These cases take the proposition of the seminal case and either restate it in different terms or refine the analysis in some way that may be more or less helpful to the reader. When, for example, the seminal case was written in the legalistic jargon of the past, the reformulation case may delete the jargon and restate the proposition in plain English.

Pseudo-Seminal Case--When the seminal case has been forgotten or lost in the chain of citation, a more recent case will often emerge as the one most courts presently cite as the oldest or most reliable case to support the given proposition. This case effectively takes the place of the lost seminal case.

Companion Cases--As I use the term here, companion cases (not to be confused with the more technical use of this term) are parroting cases that have over time been so consistently cited together with the seminal (or pseudo-seminal) authority that they achieve a certain perceived legitimacy and it would now seem awkward to break the habit of citing the companion case together with the seminal authority.

Parallel Cases--Occasionally, separate lines of authority for the same proposition develop without any common source; or, perhaps more likely, the original source or seminal case is buried so far back in the chain of citation that it has been all but forgotten. This then leads to two or more lines of cases standing for the same proposition, with different courts typically preferring one or the other of the parallel lines of authority.

Storehouse Cases--It sometimes happens that, when there are multiple parallel cases with no clear seminal or pseudo-seminal case to which they all refer, somewhere down the road a particular case will attempt to collect or "storehouse" all of the parallel lines. If this storehouse case is reliable, it is a prime candidate to be cited from then on as pseudo-seminal authority.

Application Cases--Some cases that have only marginal value as support for an abstract proposition of law, have great value in their application of the proposition to facts similar or analogous to the facts of your own case."

After categorizing cases, it is time to select the cases to cite. The article offers guidelines for selection:
  • Provide Both Seminal and Recent Authority
  • Generally Omit Parrots
  • Use Vertical Strings To Show Continuity Within a Court
  • Use Horizontal Strings To Show Continuity among Courts
  • Reconcile Parallel Lines of Authority
  • Use Bolstering and Reformulation Cases to Strengthen and Better Explain
  • Use Application Cases For Similarity and Analogy
As the author notes, improper case selection may cause the reader to reject the underlying legal proposition, which could be the death knell for a case. This advice is sound, and it's the best explanation of selecting a case to cite that I've seen. 

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