Tuesday, February 26, 2019
Occasionally, there is no binding precedent for an issue. The appellate courts in a jurisdiction have not addressed the issue, and courts outside the jurisdiction have adopted differing rules. After reviewing the different rules, you may prefer one rule over another because it leads to a more favorable outcome. Before you can argue how this rule applies to your case in your brief, you must convince the court to adopt the rule you prefer. At Commonwealth Law, the legal writing professors refer to this as “the battle of the rules.”
I encountered my first “battle of the rules” when writing a brief for a moot court competition in law school. Initially, the issue intimidated me because it felt different from the analysis I had been taught. As I encountered more “battle of the rules” issues in practice and teaching, I developed some pointers for how to wage, and hopefully win, the battle.
Battle Strategy #1: Help the Court Understand Its Options.
You may be tempted to begin your argument by describing all the reasons why the court should adopt the rule you prefer. These arguments could be confusing if the court does not appreciate that this is a “battle of the rules” issue. It is better to start by explaining that there is no binding precedent on the issue. Then, provide a brief description of the different rules available based on persuasive precedent. Educate the court on rule A and rule B, even if you want the court to adopt rule B.
Battle Strategy #2: Explain Why the Rule You Prefer Is the Best.
To sway a court toward your preferred rule, rule B, explain why it is the best rule for society in general and your jurisdiction in particular. Focus on the impact of the rule. Rule B may be more easily applied by law enforcement officers in the field. Rule B may align with policies foundational to the area of the law, such as torts or contracts. Also, argue why the other rule, rule A, is not a good choice. Rule A may open the floodgates to litigation and clog court dockets. Rule A may place an onerous burden on a segment of the population. The reasons you provide in favor of your rule and against the other rule should be supported by authority, as explained in my next point.
Battle Strategy #3: Anchor Your Argument in Authority.
When asking a court to wade into uncharted waters, provide the security of authority. Cite to courts that have adopted the preferred rule. Courts may be persuaded to adopt a rule if most jurisdictions have done so or if it appears to be the current trend. If some states have enacted statutes or regulations similar to the preferred rule, cite to them. It is particularly persuasive if you cite cases or legislation from sister jurisdictions. Alternatively, you may be able to analogize your “battle of the rules” issue to an issue with settled law. For example, argue that a court should recognize a constitutional right by drawing a parallel to other well-established constitutional rights. Finally, secondary sources may lend support for your arguments. Law review articles, model codes, or restatements can be helpful additions to the legal authority you provide.
Battle Strategy #4: Use CRAC to Organize.
Use the traditional organizational scheme of conclusion, rule, application, and conclusion (CRAC) to set forth your “battle of the rules” argument.
First, state the conclusion. Tell the court what rule you want it to adopt. “This Court should adopt Rule B because it is consistent with the remedial purposes of tort law.”
Second, discuss the rule options. Begin by explaining that there is no binding precedent for the issue. Then, help the court understand the rules it could adopt. Cite to authority for all rule options.
Third, describe the impact of applying the preferred rule. Argue that the preferred rule will be better for society. Respond to your opponent’s arguments as to why another rule is better. Cite to authority to support these arguments.
Finally, restate your conclusion and reiterate the rule you want the court to adopt.
Battle Strategy #5: Study the Great Fights.
When you encounter a “battle of the rules” issue in practice, observe how the attorneys argued it and the court decided it. Collect effective arguments in your quiver so you are ready for your own battle. I give my students an excellent example of a “battle of the rules” argument from a brief written by one of my former colleagues at the Pennsylvania Office of Attorney General. You may access the brief, and the “battle of the rules” argument on pages 14–24, by clicking here.