Analogizing Your Case to a Precedent
This month's column is about analogizing your case to a precedent. The heart of most briefs and memos is an argument on caselaw, and the basic caselaw argument is an analogy to precedent. Yet, too many lawyers -- even lawyers who have properly researched and thought-out their arguments -- write poor, unpersuasive analogies.
A persuasive caselaw analogy is an explicit argument. Unlike an implicit argument, which we discussed in last month's column on the Statement of Facts, an explicit argument replies to the question "why?" with the answer "because". In a caselaw analogy, that explicit "because" is stare decisis, i.e., "because that's what the court in the precedent did". This "because", however, is actually a conflation of three different arguments, all of which must be defended and won. These three arguments are:
A good structure for your caselaw analogy is one that will enable -- or, better yet, force -- you to deal with all three conflated arguments in the analogy. Of course, some of these arguments are more difficult than others. For example, if the precedent is binding on the court to which you are arguing, then the second argument (that the precedent reached the correct result) is made by the citation. If, however, the precedent is just persuasive, rather than binding, even that argument needs to defended and won. Similarly, the third argument (that the court in your case should reach the same result as the court in the precedent) is often made by the citation, but may also need to be defended and won if the authority is just persuasive or if the authority, even if is binding, may not be the correct rule, as when conflicting lines of precedent exist.
Let's begin thinking about what would be a good structure for caselaw analogies by analyzing examples of poor structure. (In these examples, I'll use a false-imprisonment case. I'll also assume that you're the author of these examples. Forgive me, but you and I are just talking in private, anyway.)
A common type of poor structure is citing your facts to the precedent, e.g.: "In our case, plaintiff was confined by a muscular man wielding a knife with a seven-inch blade. Smith v. Jones." A related type of poor structure is citing your conclusion to the precedent, e.g.: "Plaintiff wins our case because his fear was reasonable. Smith v. Jones." Either example can be exacerbated by string-citing, e.g.: "In our case, plaintiff was confined by a muscular man wielding a knife with a seven-inch blade. Smith v. Jones, Otto v. Bismarck, Gerd v. Rundsted, and Helmut v. Krupp."
These types of structures are poor because they provide neither for an explicit "because" nor for an explicit discussion of the three conflated arguments in an analogy. In the first type of structure, citing your facts to the precedent fails to explain your thoughts to the reader. The reader has to pull Smith v. Jones off the shelf (or retrieve it from the database), read it, and then think of the analogies that you have already thought of. This flaw is exacerbated by the string cite. You may just have well have given the reader a list of relevant cases and said "Go read these". In the second type of structure, citing your conclusion to the precedent does indicate that you think Smith commands the result you want, but does not tell the reader why. No explicit argument is being transmitted to the reader. It's like the old definition of a college lecture: "a process by which information is transferred from the notes of the professor to the notes of the students without passing through the minds of either".
Further, in both examples, a reader who actually pulls and reads Smith may discover that Smith is not on all fours with the case at bar -- and may feel cheated by the citation to Smith, even to the point of thinking that you were trying to pull a fast one. Of course, if Smith was on all fours, then you did a poor job of pointing that out. Finally, the bare citations to Smith left you wide open for your adversary to forcibly brings to the court's attention what (in your adversary's view) you omitted, with the expressed or implied conclusion that a candid advocate would have disclosed these differences upfront, rather than hiding behind an unexplained citation.
One subtle reason for the poor structure of these examples is that the precedents were treated as propositions of law rather than as sets of facts on which the courts reached certain results. If you've ever worked with law students or young lawyers, you know that treating a precedent as a proposition of law rather than as a result upon a set of facts is endemic to their writing. (To be fair, even experienced lawyers -- such as the Justices of the Supreme Court of the United States -- fall prey to that syndrome.) Of course, there are reasons for this: the case-method teaches law students that cases stand for propositions of law and that divining those propositions is a lawyer's basic skill; most legal-research tools are great devices for discovering propositions of law, but poor devices for discovering the facts of the case; and, perhaps most important, thinking about analogies between cases is hard work.
In contrast to these poor structures, a good structure would force the writer to explicitly explain the "because" and the three conflated arguments in an analogy. The following rules help ensure that the caselaw analogy is structured to accomplish these goals:
Like having a good follow-through in tennis or using parallel structure in sentences or making all subdivisions in an outline have at least two points, comparing facts to facts, policy to policy, and law to law is a rule that by maintaining proper form attempts to ensure that the substance is correct. Comparing facts to facts, policy to policy, and law to law forces the argument to analogize between analogous sections of the cases and also forces the argument to be more explicit, thereby conveying more of the your thoughts to the reader. Finding yourself comparing non-analogous sections of your case and the precedent (such as comparing the facts in your case to the law in the precedent) is a warning sign to revise the structure of your analogy.
The structure suggested here forces you to fill out your analogies, which gives them a fighting chance to be persuasive. Of course, sometimes not even the best analogy helps. As one judge said when the case before him was analogized to a precedent he himself had written, "Well, I had a stupid law clerk that year!"
© 2016 by David L. Lee
© 2016 The Law Offices of David L. Lee.
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