Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Sunday, February 23, 2020

When Drafting a Brief or Preparing for an Oral Argument, How Do You Know When to Stop Researching?

One question that most, if not all, attorneys have asked themselves when drafting an appellate brief is: “When should I stop researching?”

This concern is certainly understandable. After all, the last thing that an attorney wants is for a judge to ask “Why didn’t you cite X case, which is directly relevant to the legal issue before the court?” or state “I would agree with your argument counselor, except for the fact that X case was decided by the Supreme Court four years ago and the Court ruled against your position.” If this happens, you will be embarrassed, you will lose credibility with the court, and your client will have little if any chance of succeeding on the merits.

To avoid this problem, attorneys must research a legal issue sufficiently to ensure that they know, among other things, the relevant legal standards, including the standard of review, the governing precedent (particularly cases that are factually similar), and favorable and unfavorable authority. But how do attorneys know when they have done enough research? They rely on several criteria (along with experience) to make this determination and ensure that they are fully prepared to draft an excellent brief or deliver a persuasive oral argument.

1.    Identify the appropriate scope of your research

Before you begin researching, you should identify the universe within which you should be researching. Doing so will enable you to identify the sources of binding legal authority and ensure that you confine your research to the most relevant precedent.  When making this determination, ask yourself the following questions:

  • Is your case in state or federal court?
  • Does your case involve a state or federal issue?
  • Does the legal issue involve a common law cause of action, statute, constitutional provision, or administrative regulation?
  • Are you arguing for a correction in a lower court's decision or an expansion of the law?
  • Have the courts in your jurisdiction previously addressed the legal issue or is it an issue of first impression?

For example, if your case is in state court and involves a state law issue, your legal research will focus primarily on prior decisions in your state by the state supreme court and the appellate courts. If your case is in federal court and involves a federal issue, your research will focus primarily on decisions from the circuit in which you are litigating. If your case is in federal court and the legal issue involves a state law claim, your legal research (on the substantive law) will focus on decisions by the state supreme court and appellate courts. 

You must also identify whether the legal issue relates to a common law cause of action, statute, or constitutional provision. If, for example, you are appealing a case where a state court found that your client acted negligently, you should only research cases in that state (from the state supreme court and the appellate courts). In such a case, your research should focus primarily on cases decided by courts within your jurisdiction that have applied and interpreted the relevant law, and that involve similar facts, if possible.

Importantly, the above advice applies to cases where you are arguing for a correction in the law.

If, however, you are arguing for an expansion of the law, you will likely expand your research to cases from courts outside of your jurisdiction that have considered this issue and that have expanded the law in the manner that you are advocating. For example, if, in 2015, you were arguing before the Sixth Circuit Court of Appeals that same-sex marriage bans violated the Fourteenth Amendment’s Equal Protection Clause, you should have cited in your brief and at oral argument the Seventh Circuit’s decision in Baskin v. Bogan, which previously held that same-sex marriage bans violate the Equal Protection Clause.

Consequently, in cases where, as in the above example, the law is unsettled in your jurisdiction (or is an issue of first impression) you can and should rely on cases from other jurisdictions that have addressed this issue. Although this precedent is not binding on the court, doing so will help to guide the court in reaching an informed and, hopefully, favorable decision.

Ultimately, determining the scope of your research is critical because it will enable you to identify the sources of binding, as opposed to merely persuasive, authority and it will ensure that you avoid conducting unnecessary or irrelevant research.

2.    Look for repetition

You will likely know that you have researched a legal issue sufficiently when you encounter repetition in the relevant case law. For example, if you are researching the negligence standard and you read fifteen cases in which the courts rely upon the same criteria to determine if a party was negligent (i.e., duty, breach of duty, causation, and damages), you can be confident that you’ve identified the relevant legal standard. Likewise, if you are researching how the courts define causation for purposes of determining negligence and you read several cases where the courts recite the same test or standard for causation, you can be confident that you’ve researched causation sufficiently.  Additionally, if you continue to find the same legal authority despite using different research methods, you’ve probably located the relevant authority.

You should also strive to identify cases that involve similar facts and you should rely only on cases that reach a favorable result. Never rely on a case that, although supporting your recitation of the relevant law, reaches a conclusion that undermines the argument you are making or the remedy you are seeking.

3.    Review the cases in your opponent’s brief

You should review the cases in your adversary’s brief. Doing so will enable you to identify relevant (and likely unfavorable) legal authority that you may have failed to discover in your research. In addition, you should review carefully how your adversary presents relevant case law to ensure that your adversary is not misrepresenting precedent.

4.    Read the briefs submitted by the parties in prior cases that involve the same or similar legal issue

To the extent possible, read the briefs submitted by the parties in prior and relevant cases. In so doing, you may discover additional cases that you did not find in your research or you may simply confirm that you have sufficiently researched a particular legal issue.

5.    Identify the cases cited by courts in prior decisions

You should identify the cases that courts in your jurisdiction have relied upon when deciding the same or similar legal issue. This will facilitate and expedite your research and it will provide you with the specific cases that courts found influential when deciding the issue.

6.    Research the subsequent history of the cases you cite in your brief

Be sure to research the subsequent history, if any, of the cases you rely upon in your brief or at an oral argument. In so doing, you will discover whether there is negative history that impacts the persuasive value of the cases upon which you are relying and whether a case has been overruled.

The above tips are not intended to be exhaustive. However, adhering to these tips will enable you to decide when to stop researching and provide you with the assurance that you’re prepared to draft an excellent brief or deliver a persuasive oral argument.

https://lawprofessors.typepad.com/appellate_advocacy/2020/02/when-drafting-a-brief-or-preparing-for-an-oral-argument-how-do-you-know-when-to-stop-researching.html

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