Don't cite every authority you find.
Don't cite every authority you find.
The quality of your citations matters more than the quantity, and less is often more.
Every rule statement and other legal proposition in your litigation brief should be presumed to require at least one citation. But think strategically about what authority you need to make the best possible arguments while keeping the brief succinct.
The fact that you found a relevant case does not justify citing it. As with everything else in your brief, each citation you include must serve some communicative purpose and add useful information. It should advance your argument without duplicating the work of other citations.
Here are some guidelines for how many authorities to cite and how much to discuss each authority.
For each legal proposition1 in your brief, consider how likely it is that the judge will be skeptical of the proposition or that your opponent will challenge it. If you expect it to be challenged, estimate how strong a challenge might be. The answers influence these decisions, which must be made for each proposition:
Will you explain the proposition and any reasoning or analysis that underlies it, or just cite an authority and move on?
If you have more than one supporting authority available, how many should you cite?
For each authority you cite, ask:
Should you mention the authority in the main text or in a footnote?
If the authority is a case, should you discuss the case’s facts or reasoning? If so, should you discuss these in the main text or in an explanatory parenthetical?
At one end of the spectrum, there are legal propositions that cannot reasonably be disputed. These include, for example, well-known procedural rules and rules derived directly from binding precedents. You can ordinarily support these with a single citation to a binding authority, with no explanatory parenthetical or discussion needed.
For example, this is a straightforward proposition supported by one unexplained citation:
An order granting an anti-SLAPP motion is reviewed de novo. See Flatley v. Mauro, 39 Cal. 4th 299, 325 (2006).
By contrast, your most controversial propositions might need to be supported by several citations. You will need to explain your reasoning and show why the authorities you cite compel the result you want.
Your decision about how much to support a proposition should be guided, in part, by readability principles: concision is better than verbosity, and unnecessary details should be omitted. Simplicity makes for better prose and better arguments.
The quality of your citations matters more than their quantity. Even with contested propositions, one strong citation is better than three weak ones. Judges prefer simple arguments that point them to one binding case that they must apply.
To determine whether adding another case citation to an already-supported proposition would improve your argument, consider (1) where the source sits on the hierarchy of legal authority and (2) how legally and factually similar the cited case is to your case.
Every argument is different, but a common way to defend tricky propositions is to establish a broad rule or framework by citing a case from the highest court in the jurisdiction, then add citations to cases lower in the hierarchy that are closely analogous to your case. The secondary citations show that your case falls within the broad rule.
You should also minimize string citations. String citations—long chains of citations, often unexplained, that purport to back a proposition—are rarely helpful. It’s better to cite just enough authorities to establish a proposition. Consider supporting a proposition with a string citation only if the proposition is contested and you have no binding authority on point (or it is unclear whether the authority you cite resolves the issue).
Providing string citations to support obvious or uncontested points of law has the counterproductive effect of making the point seem controversial. Here’s an example of an unhelpful string citation that amounts to a research dump:
A demurrer tests the complaint alone, not the complaint combined with a defendant’s premature evidentiary submissions. See, e.g., Del E. Webb Corp. v. Structural Materials Co., 123 Cal. App. 3d 593, 605 (1981); Cruz v. County of Los Angeles, 173 Cal. App. 3d 1131, 1134 (1985); Fremont Indem. Co. v. Fremont General Corp., 148 Cal. App. 4th 97, 115 (2007).
This string citation is inappropriate because the legal proposition in the first sentence is well known and uncontroversial. The citation is made even more unhelpful by the absence of parentheticals or other text explaining why each cited case matters. If you must use a string citation, use parentheticals to provide some factual context for each case or otherwise explain why the citation is nonredundant.
Here’s a good example of a string citation being used to establish a controversial point of law—note the use of parentheticals to make clear why each cited case contributes something to the argument:
Even if the $1,165.19 charge could be construed as “rent,” provisions purporting to collect unearned “future rent” are void as penalties. See, e.g., Ricker v. Rombough (1953) (holding that “rent acceleration” clauses causing unearned future rent payments to become due upon breach are void as penalties); 250 L.L.C. v. PhotoPoint Corp. (2005) (holding that a security deposit may not be applied to “future rent”). [citations simplified]
Another reason this example’s string citation is helpful is that the main support for the proposition is a case decided in 1953. Old cases are sometimes worth citing, but they give opponents an easier target and may make the judge wonder whether they are still good law. Bolster them with citations to newer authorities showing that the law has not changed.
Ryan McCarl is a founding partner of Rushing McCarl LLP and the author of Elegant Legal Writing (U. Cal. Press 2024). For more writing tips, subscribe to the Elegant Legal Writing newsletter and follow Ryan on LinkedIn. McCarl’s book is now available on Amazon.
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Legal propositions include statements of law (that is, rule statements) as well as conclusions and subconclusions that apply law to facts.