Saturday, September 29, 2018
You have to learn the rules of the game. And then you have to play better than anyone else.
According to recent data, "68% of judges have experienced missing precedent impacting the outcome of a motion or proceeding.” That same data says that 25% of judges complain that the lawyers miss precedent in the majority of cases. Wow.
Those years in law school don't seem to have made much of an impression. All those days reading casebooks stuffed full of cases interpreting cases. All those principles we learned about stare decisis and how the common law works (you know: prior cases being important and stuff).
This data highlights how far our legal writing has fallen in the rule department. Anecdotally, I sure agree. I clerked for several years for different judges and saw tons of briefs and motions. And I can't tell you how many times a quick Westlaw search turned up key authority that was conspicuously missing from the papers. Or how often the rule sections were made up of little more than copy-and-pasted block quotes from a smattering of cases.
So let's give some thought to how we explain rules to our judges. In trying to figure out how to help my students pick up these skills, I've come up with four basic steps to crafting better rule sections.
Step one: Figure your rules out.
Before writing out your draft, find tons of authority and give yourself time to marinate in it all. The goal is to come up with a plan for how all the important rules work. Don't shirk this step. You can't write a good rule section until you know the rules deeply.
It's easy to get lost during the research phase. So consider creating two lists to help keep you grounded in what matters: first, a list of the legal questions that you need to tackle in your document; second, a list of all the good facts for your position—as well as the bad ones out against you.
That issue list will prevent you from getting sidetracked on irrelevant questions. The fact list is even more important: because whether a rule can help you hinges entirely on the facts of your case. If you don't have the facts to support a rule or interpretation of a rule--the rule is useless. With these lists in hand, you'll have a much easier time with the research and planning.
Once you find the raw authority you need and a general plan, you can start crafting what you'll need to persuade: a set of specific, bite-size legal principles that address all the good and bad facts for you—answering the key legal questions on your plate. These refined rules should tell your reader precisely how the law works so that--later--it will become obvious that your facts come out on the winning side.
To refine these specific rules, two tools may be helpful: a carving tool and a honing tool. First, carve up the rules into small, easy-to-understand chunks. This will make your rules a lot easier to digest and apply.
Second, hone your rules with specific guidance that shows your reader how the facts fit into the rule’s crevices. This is the essential step in the refinement process. If you don’t hone your rules so that your reader knows where to slide in the facts, you face a real risk of losing. Because the judge may end up applying the rules to the facts in ways you didn't anticipate.
Crucially: you should create these special refined rules only for the key legal issues that you think you might lose on. Don’t go through all this work for some uncontested or easy issue. When your research suggests that you could lose on a point, that’s when you bring out the refined rules.
To make this step concrete, let's take a quick example.
Say that you have a battery case. The defendant purposely flew a drone towards your client in the park, the drone struck your client’s backpack, and the backpack then flipped up and cut your client’s forehead. The bad facts become obvious: the defendant didn't actual touch your client--a drone touched his backpack.
You do your research and realize that only the contact element is a possible loser for you. Let’s say you find several helpful cases and brainstorm two refined rules on this point—carved into two separate principles and honed to specifically address your facts:
Making contact with something the plaintiff is carrying on his body qualifies as contact.
Putting something into motion that makes contact is enough—defendants need not touch their victims themselves.
These specific, bite-sized rules tell your judge precisely how to deal with the bad facts in your case.
Step two: tell your reader—clearly—what each of your refined rules are.
Research and planning done for now, start writing. This is where you should take all that amazing work you did in carving up and honing your rules and put it to use. You get to tell your reader about each of your refined rules.
Make these refined rules extra obvious in your document. After all, you don’t want your reader to miss them. You can do that by
- introducing them in the introduction or summary of the argument;
- echoing them in the beginning of your sections throughout, and
- clearly stating each one in the first sentences of the rule paragraphs that you ultimately use to explain the rules in detail.
When you get to the detailed rule explanation, it’s important to lay out your refined rules simply and sensibly.
First, give your specific rules some context by providing background. Then discard any parts of the rule that don’t matter. Finally, show your reader what you came up with for the important parts of the rule: the specific, bite-sized rule interpretations that you carved up and honed.
Taking our example from earlier:
Battery includes four elements: an (1) intentional (2) contact (3) with another that is (4) harmful or offensive [the background rule for some context]. There is no dispute that the defendant acted intentionally or that plaintiff was harmed [cutting away the irrelevant parts of the background rules].
Contact does not merely include touching someone with your hand, it also includes both (1) making contact with something the plaintiff is carrying, and (2) putting something into motion that makes contact [the specific, bite-size rule interpretation that will help the judge deal with the bad facts out on you].
You’ve now cut up your black letter rule into the two specific rules that matter for your facts. And if the court agrees with them: you already know how your facts will apply.
Step three: Persuade the judge to adopt your refined rules.
At this point, your judge should understand your specific interpretation for how the rules work. But she may still be suspicious. Are these really the way the rules work? So you must prove your craftmanship: show your reader why your carved and honed your rules the way that you did.
This is a tough skill to master. The idea is to use all sorts of tools to interpret the authority and convince the judge that your view of the rules is the only one that makes sense. In some ways, you are showing off so that the judge will want to steal your reasoning.
You have many tools in your toolbox to persuade readers to follow your refined rules. Here are a handful to think about:
- Quotes from cases. Use specific quotes to illustrate how rules work or apply.
- Comparing language from different cases. This is a classic: comparing language or facts used in different cases. Compare to your own (to support or distinguish) or to others.
- 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 just seems inconsistent, that is enough to plant a seed of doubt.
- Full fact-to-fact explanation of cases. Compare specific facts from prior cases to your case. Often, it’s best to try to compare an actor in an authority case to an actor in your case.
- Analyze the quality of cases. This is a crucial, and often ignored, set of persuasion tools. All sources are not created equal. Consider the age of the case, thoroughness of reasoning, what court it came from (mandatory? reputable?), who wrote it, the level of the court, how other authorities have treated it, whether published, how many judges signed on.
- Identify a line of cases and discard them all in one swoop because of an earlier case that was wrong or of poor quality. This is a great one when facing a daunting line of cases that are against you.
- Argue based on which facts a case emphasized most, or emphasized least, or ignored.
- Argue about why a court was silent about a fact or rule, despite that it was relevant or obvious.
- 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).
- Argue about the broadness of the rule. Did the case narrow its holding to certain triggering facts, or are there broader principals?
- Explaining where the rule came from or its original purpose can help prove your rule interpretation.
- Other similar statutes, laws, etc.—how they work, how they’re applied or interpreted—can all shed light on your rule interpretation.
- Similarly, fundamental legal principles can help: like equity, basic rules about intent, basic rules about causation, and more.
- Legislative history: how did the legislature intend for this rule to operate?
- Textual interpretation canons, when interpreting statutory rules. Know the big ones, like textualism, prior antecedent, etc.
- 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. Fold policy in subtly after the legal analysis is through. And give some thought to which policies might be most persuasive to your judge.
- Common sense. Judges use theirs, so you should, too. What is the most sensible interpretation of the rules?
To finish up our example, using a couple of these tools:
Battery includes four elements: an (1) intentional (2) contact (3) with another that is (4) harmful or offensive. [Cite.]. There is no dispute that the defendant acted intentionally or that plaintiff was harmed.
Contact does not merely include touching someone with your hand, it also includes both (1) making contact with something the plaintiff is carrying, and (2) putting something into motion that makes contact.
Defendants need not make contact with the plaintiff’s skin to carry out a battery—contacting something on the plaintiff’s body is enough. True, the only supreme court case on point involved a punch, but that case is 40 years old [quality]. Cite. And there is no language in that case suggesting that other sorts of contacts do not qualify [facts ignores]. Cite. Other district courts facing this same issue have held that “contact within anything the plaintiff is holding is enough.” [quote] Cite. In Park vs. Hoffman, for example, the defendant was found liable for battery after ripping a plate from the plaintiff’s hands [factual explanation]. Cite.
A final note: Often ignored citation basics.
Remember that if you cite authority you must either be quoting the source or directly paraphrasing it (saying precisely the same thing in slightly different words). If your reader needs to make any inference to agree with your underlying sentence, you need a signal, to make the inference obvious, or to cut the citation altogether and rely on your own credibility.
Say you write this: “Defendants need not touch the plaintiff’s skin to carry out a battery—touching something laying on the plaintiff’s body is enough. Park vs. Hoffman, 324 F. 3d 42, 44 (9th Cir. 2018).” When your reader pulls up page 44 of Park, it better say something like “A defendant contacts another by touching any item on the plaintiff’s body.” Different words, but precisely the same meaning.
If your reader must infer—say, you assume that this was the court’s reasoning based on the facts in the case, or you’re reading between the lines of some language and what the court didn’t say—you can’t just cite the case. You need a signal (like See) or to provide some more explanation to the court about what inference your making. And let me say, the see signal is not always so helpful because you’re asking your reader to do the inference work for you. So avoid that option.
One option is to explain your inference directly:
Given that the court in Park addressed a defendant who ripped a plate from the plaintiff’s hand, contact with the plaintiff’s skin is not needed. Park vs. Hoffman, 324 F. 3d 42, 44 (9th Cir. 2018).
Your citation is not misleading because you’re telling your reader what inferences you’re relying on. You could also interpret the rule in your own words, then explain the supporting facts or quotes with citations:
Contact with the plaintiff’s skin is not needed. In Park, the court address a defendant who ripped a plate from the plaintiff’s hand. Park vs. Hoffman, 324 F. 3d 42, 44 (9th Cir. 2018).
Now you are telling the judge that the first sentence is your inference, the second is a direct paraphrase of the fact section of the case. All good.
Joe Regalia is a law professor at the University of Nevada, Las Vegas, William S. Boyd School of Law and regularly leads workshops training legal writing and technology. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles and writing tips here.