Winning on the Rules
23 Tools for Persuading With Legal Authority
By Joe Regalia
An awesome article about "citation stickiness" made the rounds recently. The thrust of it is that judges don't use many of the cases that lawyers put in their briefs. In other words: Judges are often figuring out the rules on their own. This article is just the latest of many suggesting that lawyers are failing in the law department.
Does that surprise you? I'm not sure it should. Writing about the facts is intuitive enough, but writing about rules is tough. Cases and statutes are complex and convoluted. Two things that don't make for easy writing. It's tempting to drop a few citations and generic rule statements on your reader and move on.
But if you do that, you're missing the mark. Your judge will need to craft a compelling account of how the rules work when writing the opinion. So you should, too. Rather than stick to the simple, superficial rule statements that many lawyers opt for, consider the persuasive power of a more sophisticated rule story. Cognitive science supports this approach as well. The more comprehensive your pitch for why a judge should adopt your interpretation of the law, the more likely you are to win.
To write better rule explanations, try this two-step process.
First, package your winning interpretations into simple slogans. By distilling your rule interpretations into a pithy sentence or two and setting it out at the beginning of your rule sections, your reader will have an easier time following along as you dish out the meat.
For example, take this packaged rule from an appellate lawyer:
Whether a putative class member has standing to object turns entirely on whether they will lose money when the class is certified.
This snappy headline instantly gives your reader a snapshot of your take on how the rule works.
Second, get more sophisticated about how you prove your interpretations. I call this using authority evidence. Authority evidence is the stuff you use to persuade your reader that your take on the rule is worth following. Like factual evidence, authority evidence comes in many forms. Also like factual evidence, all authority evidence is not created equal, nor is it equally useful in every situation. Instead, you should think hard about what authority evidence you can round up in your case and which types will be most persuasive to your particular audience.
The takeaway: Don't just rely on facts from prior cases to prove your rules. You would never rely on a single piece of factual evidence to litigate a case—and the same is true of authority evidence.
I've gathered 23 types of authority evidence to inspire you. Many should be familiar, but some perhaps less so. Combine several of these in your rule sections to craft compelling standards that will win.
Quotes from cases. Use specific quotes to illustrate how rules work or apply.
This Court has said "the touchstone is the burden of proof." [Cite].
Comparing language from different cases. This is a classic: Comparing language used in different cases to help distinguish, explain, and clarify.
While this court said the touchstone was “burden of proof” in Sybeck, it did an about face in Perelis, saying that from now on “intent” is what courts should focus on most carefully.
Contradicting language. Suggest a court did not really mean what it said by pointing to contradicting language within that same case, or from other relevant cases. Even if language merely seems inconsistent, that is enough to plant a seed of doubt.
The court mentioned that specific intent may be required, but then finished its opinion by saying "never before have we required plaintiffs to show precisely what the defendant intended."
Full fact-to-fact explanation of cases. Compare specific facts from prior cases to your case—the similarities for good principles and the differences to distinguish. Often, it’s best to try to compare an actor in a prior case to an actor in your case.
But note there are two sorts of factual comparing: Silent fact comparisons and reasoned fact comparisons. Silent fact comparisons are when the precedent opinion never mentioned the fact in its reasoning, but the facts were still there somewhere in the case. Reasoned comparisons are more persuasive because the precedent case said that the fact was important.
Jones turned on several facts, all of which suggested that the prejudice was so severe that money could not make the plaintiff whole. The company had been slaughtered in the stock market, plummeting so much each day that analysts questioned whether it could ever recover. Not to mention the company’s pure loss of liquid funds, which nearly put it out of operation. The court highlighted both of these facts in granting preliminary injunctive relief.”
“Calico did not deal with companies at all: it was a case about a mother asking for custody of her child.”
Analyze the quality of cases. This is a crucial, and often ignored, set of tools. Consider the age of the case, the thoroughness of reasoning, what court it came from (mandatory? reputable?), who wrote it, the level of the court, how other authorities have treated it, publication status, how many judges signed on, and more.
The other case that mentioned this rule, Samar Trusts, was decided 30 years ago and gave it only three lines of analysis.
Identify an unhelpful line of cases and discard them all in one swoop because the source case was wrong. Make sure you do some digging for the foundational case, statute, or whatever source the rule comes from. Then see if you can attack an unhelpful principle at the source. Or you can use that source to help support a narrower or interpretation of the rule that you might like.
This requirement of pleading the relief down to the penny comes from a single line of cases about forfeiture—a context that involves different considerations than garden variety tort claims.
Argue based on which facts a case emphasized most, or emphasized least, or ignored. Often courts give you some idea about which facts were most important. You can use this focus to argue that a fact should be weighed more heavily, or less heavily, than others under the rule.
The court brushed aside Ace’s harms, giving it barely two sentences of consideration. The thrust of the question, instead, was whether Ace had laid out a plausible legal claim in the first place.
Argue about why a court was silent about a fact or rule, despite that it was relevant or obvious. If a court never addressed a fact that the other side thinks matters—and the same rule was being applied—that is evidence that this fact is not as important as people think.
Plaintiffs urge that their corporate walls shield them from a suit. But not in a single one of their cited decisions did the court mention piercing the corporate veil. That is so despite that each involved a parent and child company waging the same battle that the parties are waging here. The court’s silence is telling.
Argue a point is merely dicta.
González turns to dicta from a single case—dicta seemingly endorsed by only a plurality of the Supreme Court in United States v. Verdugo-Urquidez. Relying on this dicta, González argues that aliens have no Fourth Amendment rights even when they step onto U.S. territory.
Dig into the record and point out what the parties argued in a prior precedent case to add color to the court’s holding. In discussing the Wickard commerce clause case, for example, one attorney dived into the history to show that this case was about much more than baking bread:
Farmer Filburn was not an organic home baker who had decided to raise wheat for a few loaves of bread. Rather he “raised wheat commercially and regularly sold a portion of his crop on the open market."
Argue a case distorted the previous rule of law. Identify the inherited rule in a case (the rule as it was before the case) and the processed rule (the rule after the case has applied the rule to facts). Then point out a disconnect.
Jerico Systems Inc. says that it applies the "no-flunking" rule, but its reasoning and analysis tell a different story. Before Jerico, never had a court suggested that flunking was even part of the analysis. That goes for all 14 cases that had taken on this same issue before. But Jerico not only considered flunking—the court said that this was the “touchstone” of the case.
Argue about the rule’s broadness. Did the case narrow its holding to certain triggering facts, or are there broader principals you can pull out even if the facts are quite different?
The High Court made sure lawyers would not use its holding in the future, saying: "if [it] were a different plaintiff and different defendant, the rule would likely come out differently."
That case addressed a unicorn—a company that had never even sold a product much less practiced its claims invention. Perry says nothing about a blanket rule requiring every company in the nation to support its practice with admissible evidence.
Discredit, or bolster, by looking at how other courts or judges have treated authority.
Lynch has been relied on recently by, among others, the Third Circuit in Chi Thon Ngo, the Sixth Circuit in Rosales-Garcia, and the Ninth Circuit in Kwai Fun Wong. It has been continuously cited by this Court as well.
Explain where the rule came from or its original purpose. Legal readers are persuaded by the “why.” Why does this rule exist? Are you trying to twist it in a direction that doesn’t bear any resemblance to its original purpose?
The exhaustion requirement is about efficiency and expertise. The rule was borne in Tyrion. The court there made clear that if efficiency and expertise are not on the table, exhaustion makes little sense.
Turn your opponent's case to your advantage. When the other side relies on a case heavily, look for ways that the case can also support your position. If you can pull this off, the case will move from your opponent’s column to neutral—or even to your side.
Viacom ignores Grokster’s actual holding. Instead, it tries to shift the legal playing field, disavowing the term “inducement” and contending that liability “rests on the existence of the unlawful purpose itself." The murky standard Viacom proposes diverges from Grokster in two critical respects.
Use similar statutes, laws, or cases to bolster or clarify your rule interpretation. Comparing one rule to another can shed light on how the rule should be interpreted or treated. For example, in U.S. v. Jones, Jones did not have much direct authority to support his argument that placing a GPS on his car was a prohibited search. So he brought in principles from criminal and tort law to support his rule interpretation:
A private individual’s surreptitious installation of a GPS tracker onto the property of another to monitor the owner’s movement is not only a trespass to chattels … but can form the basis for criminal liability under the laws of various states.
Persuasive and secondary authorities. Make sure never to overplay the precedential value of merely persuasive authority. But persuasive authority can be powerful supporting evidence to help prop up a novel interpretation. Just remember that the difference between saying “this is a good idea—others have seen that” and “this is the law” is important.
Legal principles like equity, basic rules about intent, and basic rules about causation. Don't ignore that classic legal principles are familiar to your readers and can help nudge them.
The court has a novel legal question on its hands: interpret the doctrine as applying to companies only, or also to individuals. Applying this rule to individuals will irretrievably change the dynamic of this market, preventing many small business from even entering it.
Legislative history. How did the legislature intend for this rule to operate? Make sure your reader is open to this evidence. But if they are, it can be powerful.
Congress never intended for one word from one section to modify everything in the Act. It said so and more than once. While the bill was on the floor of the senate, Rep. Michaels explained … In other words, he was concerned about someone making the argument that plaintiff does here.
Textual interpretation canons. Not all legal readers buy into all the canons, but most readers find the basic ones helpful. So make sure to look at the list of canons and find any that might support your interpretation of textual rules.
Because the ordinary meaning of "gerrymander" is…
Use policy. Do this after the law. But policy is powerful. There are tons of policy arguments—from the less controversial, like clarity for future litigants, to the more controversial, like fairness to one of the parties.
Horace filed suit after trying to live with his illness for twenty years. He did precisely what his doctors told him to. Yet he got worse. All that was needed to prevent two decades of suffering was one more medical test that anyone in the industry would have ordered.
Argue that the other side is creating a novelty. Try arguing that the other side is pushing for a new interpretation that has never before been adopted.
González proposes to apply the rule of Mezei—for the first time in its fifty-year history—outside the context of immigration and deportation proceedings, outside the arena of immigration law, and outside the bounds of Congress’s plenary power over immigration matters.
Argue common sense and consequences. Judges use theirs, so you should, too. What is the most sensible interpretation of the rules? If you offer the judge commonsense reasons for interpreting the rules in a sensical way, that will often stick.
To require companies to file a form every time they want to sell a device to a patient would shut down [the company] overnight. The FDA takes an average of three months to process a single form. How long will it take them to process 12,000 this month alone?
Really, the possibilities are endless. The power comes from realizing that mustering evidence for your rules is just as important as mustering evidence for trial.