Tuesday, May 7, 2019

Are Lawyers Citing the Best Cases to Courts?

Here is a question I've never thought about before: Are lawyers citing the best cases to courts?  In other words, do the courts use the cases cited in the briefs, and how often do the courts use cases not mentioned in any brief?  The answer may surprise you!

Kevin Bennardo & Alexa Chew (UNC), Citation Stickiness.

"This Article is an empirical study of what we call citation stickiness. A citation is sticky if it appears in one of the parties’ briefs and then again in the court’s opinion. Imagine that the parties use their briefs to toss citations in the court’s direction. Some of those citations stick and appear in the opinion — these are the sticky citations. Some of those citations don’t stick and are unmentioned by the court — these are the unsticky ones. Finally, some sources were never mentioned by the parties yet appear in the court’s opinion. These authorities are endogenous — they spring from the internal workings of the court itself.

In a perfect adversarial world, the percentage of sticky citations in courts’ opinions would be something approaching 100%. The parties would discuss the relevant authorities in their briefs, and the court would rely on the same authorities in its decision-making. Spoiler alert: our adversarial world is imperfect. Endogenous citations abound in judicial opinions and parties’ briefs are brimming with unsticky citations.

So we crunched the numbers. We analyzed 325 cases in the federal courts of appeals. Of the 7552 cases cited in those opinions, more than half were never mentioned in the parties’ briefs. But there’s more — in the Article, you’ll learn how many of the 23,479 cases cited in the parties’ briefs were sticky and how many were unsticky. You’ll see the stickiness data sliced and diced in numerous ways: by circuit, by case topic, by an assortment of characteristics of the authoring judge. Read on!"

Let me repeat the key point in the abstract: "We analyzed 325 cases in the federal courts of appeals. Of the 7552 cases cited in those opinions, more than half were never mentioned in the parties’ briefs."  This is astounding.  It raises the question of why lawyers aren't doing a better job of citing the essential cases to the court.  And there's more: "In our 325-case data set, the parties cited 23,479 cases. Of those, only 16% were later cited by the courts in their opinions—or to use our nomenclature, only 16% of the cases cited in the briefs were sticky."

The implications of the above are huge.  Courts should not be finding over 50% of the essential cases on their own.  This also raises the question of whether law schools are teaching legal research properly.  Are legal research classes teaching students to find the best cases?  Do these findings support the need for more experiential classes in the third year?  Do law schools need to devote more time to legal research?

Concerning an earlier and limited study of citations, the N.J. Chief Justice declared, this was enough to show “how deficient a large portion of the briefs filed in our appellate courts are in point of law and what a burden of independent research they impose on the judges.”

What do you think about this?  Please comment.

(Scott Fruehwald)


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Asher brings up a good point, which is that this study doesn't control for the importance of the citations. A second feature of this study is that it is written by law professors who are interested, naturally, in the kind of thing that law professors and prospective federal law clerks spend a lot of their time on: reading cases. A good lawyer, even at the appellate lawyer, can often be more helpful to a court by a strong discussion of the facts of the case, than by spinning a bunch of case cites to them. This is true even though you have to know the law to be able to explain which facts matter.

That second feature doesn't mean it's not worthwhile to discuss the disconnect between the briefs and the opinions, but it relates to the first point.

Take a hypothetical: an appeal of a Title VII summary judgment case that fails to cite to McDonnell-Douglas, the leading case in this area that is cited in hundreds of such cases each year. That's an enormous lawyer screwup that reveals the lawyer knew nothing about this area of the law (even after the district court opinion) and wasted everyone's time.

Change the hypothetical a bit: suppose the lawyer did cite McDonnell-Douglas, and the brief included a good discussion of its application to the case. But in writing a brief you've got to make choices because you have limited space. The "standard of review" section is required; but everybody knows what it is on MSJ. So the lawyer cites a single case saying it's de novo. Similarly, before getting to the main discussion, the lawyer has to cite to FRCP 56; and adds a single case saying it is not granted where there is a dispute as to fact. Again- everybody knows this too, and there is no need to spend a lot of time on it.

When the opinion comes out, the court addresses the McDonnell-Douglas discussion spurred by the lawyer head on. But the court cites 3 cases, with quotations from little variations in language, to say that review is de novo. The court also doesn't cite the lawyer's case to the effect that "summary judgment is not granted when there is a dispute of fact," but cites 3 other cases that say in essence the same thing. None of that was central to the appeal, and could even have been skipped by the court of appeal, had the author wanted to. But now you've got an opinion with 6 citations that were not cited in the briefs. On the surface that sounds bad. But then you look at what happened in the case and see the lawyer actually did a great job, by focusing mainly on what actually mattered to the case's outcome. The brief was lean on citations to things that are not particularly important. This allowed the court to pick up the brief and get right to the decisive discussion.

If the brief had cited 10 or 15 cases on the nature of summary judgment, that it was reviewed de novo, that it was not to be granted where a material issue of fact is in dispute, in the context of this particular case, that would have been a waste of time by the lawyer. The judges and law clerks would have had a hard time wading through all that non-controlling lead-in, to find the actual problem in the case that needed their attention.

Further- suppose you did cite those 10 or 15 cases on the nature of summary judgment in brief. There are thousands of case citations that all say the same thing. So the court could have produced an opinion with its own 10 or 15 citations, to different cases, but all saying the same thing. There again, you'd have "endogenous" citations but in the context of the case they really mean nothing. In many opinions, citations like this are just padding or window dressing.

Posted by: Steven | May 11, 2019 6:27:22 AM

Scott, that's fair. Maybe I'm too cynical, but I worry that the approaches of lawyers with decades of experience is probably bad habits learned over the years, not what law schools have or can taught.

Posted by: Orin Kerr | May 9, 2019 3:38:52 PM


I agree completely with the first half of your comment.

Concerning the second half, shouldn't law schools teach students to recognize what cases are most helpful and what cases the judges will need?

Posted by: Scott Fruehwald | May 9, 2019 3:14:40 PM

Scott, thanks for the reply. Two thoughts. First, while I agree with the adversary system, I don't think judges should decide cases incorrectly on the legal issues the parties raise just because a party didn't find the best cases for its side. Second, I'm skeptical the problem is law school. Most briefs are written by lawyers with a lot of practice experience; I suspect the problem is less that they don't know how to find cases than that they don't realize what cases are most helpful or what cases the judges will need.

Posted by: Orin Kerr | May 9, 2019 2:57:53 PM

As a former state court clerk who never acquired one of those Ivy League educations, I'll tip the hat to Asher and Prof. Kerr, recognize I needn't say anything else on the matter, and move right along..

Posted by: BB | May 9, 2019 1:42:20 PM


I find the fact that you had to use the briefs as a place to start looking for cases to be problematic. (I am criticizing the situation, not you). In an adversary system, judges are supposed to decide the litigation based on the arguments of the parties. It is a good thing that clerks in the federal system double-check the parties' research. We want cases decided on the law, not sloppy research.

However, the situation is different in state court systems. Most state courts do not have Ivy-League educated clerks to do research in every case for them. I suspect that in many cases in state courts no one checks the litigants' research. This is why I think the paper raises a significant problem, and calls for law schools to review how they teach legal research.

Posted by: Scott Fruehwald | May 9, 2019 10:30:04 AM

I agree with Asher. As a clerk writing opinion drafts, I cited lots of cases that the parties hadn't cited for reasons often unrelated to the quality of advocacy.

Posted by: ENS | May 9, 2019 8:47:16 AM

This could also be a consequence of the proliferation of string cites: if a party makes a point, and includes 7 cases, and the court's ensuing opinion adopting the point cites only one, that is 16% stickiness.

Posted by: Adam | May 9, 2019 8:00:11 AM

I'm also not surprised. Beyond Asher's point that many citations are substitutable on generic issues, my recollection from my time as a court of appeals clerk (way back when) was that most briefs did not find the best cases on their respective sides. I tended to see citations in briefs as places to start looking for cases on the issue to start my research.

Posted by: Orin Kerr | May 8, 2019 11:56:09 PM

This isn't an astonishing result at all. Consider all the citations opinions contain that you wouldn't expect to find in briefs. Any time an appellant makes a new argument in a reply brief, there will be a citation to a case saying such arguments are waived that the appellee never cited. Any time a court raises a jurisdictional issue sua sponte, there will be citations to cases, possibly lots of them, that the parties didn't cite. When a court says that the standard of review of x is de novo, the authoring judge or her law clerk are highly unlikely to pick, of all the cases that say that, the one the appellant cited in his brief. When a court decides to address some issue in dicta that the parties didn't brief, an extremely frequent occurrence, there will be citations to cases the parties didn't brief. When a court feels the need to give a mini-lecture on its approach to statutory interpretation before interpreting a statute, an increasingly frequent occurrence, there will be citations to cases the parties didn't brief, and when, as is more traditional, a court has a boilerplate paragraph or two of truisms like "if the text is clear, we don't consult the legislative history" that the parties didn't feel the need to state, they will cite cases that the parties didn't cite. And even if the parties did cite a few cases for those truisms, it's the uncommonly lazy law clerk who will choose the ones the parties picked, rather than the ones their judge wrote or the ones that make the relevant points in the language they like best (or the newest ones, which won't have been cited in briefs, or in a 28(j) letter). Now, if this study had been designed to exclude the many obvious sources of citations that you wouldn't expect to draw from the briefs and only include citations that directly go to the issues actually litigated by the parties, and from reading the article I don't think it was, I think you would find a much higher percentage of citations that pull from briefs, especially briefs written by good appellate lawyers, which most people briefing an appeal in the regional courts of appeals aren't.

Now, I don't say that this study doesn't, albeit in a flawed way, tell us something about the quality of appellate advocacy in the circuits. But it isn't clear to me that it shows lawyers are citing the "wrong" cases. I self-consciously write briefs that are intended to read like the opinion I would write as a judge for my side. They sound rather neutral and objective, don't exaggerate the strength of their arguments, and spend much more time stating, or appearing to state, what the law is than denouncing the position of the other side, or the lower court. They also quote from cases rather liberally and go out of their way to quote the most arresting or squarely on-point formulations of whatever it is they're trying to say. In my experience, this tends to result, when I win, in opinions that look quite a bit like my briefs and use most of my citations. However, most appellate lawyers, even most good ones, don't want their briefs to read like opinions; they want their briefs to read like extremely confident advocacy about how ridiculously stupid their adversary's (or lower court's, if they're representing an appellant) views are. This of course results in briefs that a court can't repackage into opinions. It also will tend to result in a citation set that is less dense than the court's, because so much time is spent on "persuasive" writing, and that diverges from the court's because it will tend to be made up of cases that support a maximalist version of their position, rather than the version the court is more likely to adopt. But that doesn't necessarily tell you anything about whether such briefs are less effective than the sort of briefs I tend to write. It may be that they're more effective and that drier briefs have markedly less persuasive power. Note, in this respect, the finding in the study that winners' citations are barely more cited in opinions than losers', suggesting that something other than who brings the best precedent to the table drives outcomes.

Posted by: Asher | May 8, 2019 8:38:06 PM

I had the pleasure of working in the federal judiciary at trial court level over the course of 15 years for four different judges. This does not surprise me one bit. Although some briefs are excellent, the vast majority fall short of providing the court what it needs to make a well-reasoned decision. As a former litigator, I tried to view this through an empathetic lens, considering practitioners' limited time as compared to the court's ability to move at its own pace (but our dockets did move quickly). This accounts for some of the "unsticky" citations, but I agree that progress is needed.

Posted by: Halle Hara | May 7, 2019 1:44:53 PM

Scott--this is very interesting. I would be curious to know how often the parties cite the cases in the d.ct's opinion to the federal appellate court.

Posted by: Tessa | May 7, 2019 12:40:27 PM

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