Provide factual context for contested citations.
When citing precedents, you often need to provide some factual context to assure the reader that they apply.
As I explain in Elegant Legal Writing,1 legal citations are not ends in themselves. Instead, they aim to support a rule statement or other legal proposition. Propositions — statements about the law or facts — are the building blocks of legal argument.
Law students often develop the habit of building their arguments around cases. This may be because American law schools usually teach through the case method, which involves studying judicial opinions, nearly all of which discuss other judicial opinions. However, a litigation brief is not a judicial opinion. Writing techniques that may make sense for judges don’t always make sense for advocates.
A litigator’s task is to persuasively argue for a legal conclusion by stating the conclusion and then showing how legal and factual propositions interact to lead to that conclusion. Most propositions in a legal brief or memorandum should be accompanied by a supporting citation.
When you cite or discuss precedential cases in a brief, you often need to provide some factual context from those cases to assure the reader that they apply. That is not universally true, however. If a rule is familiar and uncontroversial, you don’t need to mention any facts from the case cited in support of that rule; it’s better to cite the case without comment and move on, staying focused on contested points.
In the following example, the attorney 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.
For many more tips on deciding which cases to cite and how to use them effectively, buy Elegant Legal Writing. It’s a quick read that will make your writing more polished and persuasive.
Ryan McCarl is a founding partner of Rushing McCarl LLP and author of Elegant Legal Writing (Univ. Cal. Press 2024). For more writing tips, subscribe to the Elegant Legal Writing newsletter and follow Ryan on LinkedIn. McCarl’s book is available on Amazon.
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See Ryan McCarl, Elegant Legal Writing ch. 8, “Using Legal Authority”).