Provide appropriate factual context for your citations.

When citing precedents, you often need to provide some factual context to assure the reader that they apply.

When citing or discussing precedent cases, you often need to provide some factual context from those cases to assure the reader that they apply.

That is not universally true, however. The purpose of citations is to provide backing for a legal proposition. If that legal rule is uncontroversial, you don’t need to include any facts from the cited case.

In the following example, the lawyer appropriately omits any parenthetical or other explanations of Quelimane’s facts because the case is being used only to support an everyday legal rule — namely, the standard for a demurrer (California’s equivalent of a motion to dismiss for failure to state a claim):

A demurrer admits all facts pleaded in the complaint as well as facts inferable from the complaint and its attachments as liberally construed. See, e.g., Quelimane Co. v. Stewart Title Guaranty Co., 19 Cal. 4th 26, 38 (1998).

By contrast, if you’re applying a precedent by suggesting that it’s analogous to the facts of your case, you must include some factual context about the earlier case. To see what is wrong with the following example, ask yourself how the cited cases support the preceding propositions. You’d have to do the research yourself to find out:

The relief Arevalo seeks . . . would simply require federal courts to decide an issue—whether the state court’s failure to consider Arevalo’s ability to pay and the adequacy of alternative release conditions violated his constitutional rights—that has already been fully and finally litigated in the state courts and is collateral to the merits of Arevalo’s pending prosecution. See Courthouse News Service v. Planet, 750 F.3d 776, 789-790 (9th Cir. 2014); Tarter v. Hury, 646 F.2d 1010, 1013 (5th Cir. 1981).

Note that it’s impossible for the citations at the end of the previous example to directly support the stated propositions because Arevalo wasn’t a party to those earlier cases. Accordingly, the attorney needed to explain how those citations applied.

Subscribe for free to receive new posts in your inbox:

Please consider sharing this post with your networks:


Ryan McCarl is a partner at the law firm Rushing McCarl LLP and the author of the book-in-progress Elegant Legal Writing. He taught Advanced Legal Writing at the UCLA School of Law. You can follow him on LinkedIn and Twitter as well as his personal blog.