The Writer's Corner: Presenting Case Law Effectively
By Kenneth R. Swift

Stare Decisis: Doctrine holding that when a court has once laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle.

Throughout much of law school, lawyers read case after case in large part to become indoctrinated into the concept of stare decisis -- common law precedent. While every year legislative bodies add more and more statutory laws to govern society, most disputed legal issues are still decided in reference to previous case law.

As a practical matter, well-written case law arguments are very effective for one overriding reason: They make it easier for the court to find in your client's favor. If a judge feels as though she is bound by a particular decision, she has no leeway. The judge can escape having to interpret and make new law and all of the policy considerations inherent in that process.

To argue precedent effectively, an attorney must first present the decided case effectively (referred to here as a "case illustration"). The case should be presented in a seemingly objective manner that makes clear which facts the deciding court relied upon and how those facts led to the court's decision.

The Topic Sentence

Too often case illustrations begin with a benign lead-in such as: "The issue of consideration for an employee noncompete was looked at in Davies & Davies Agency, Inc. v. Davies." This type of a sentence does very little to advance your argument and provides little to the reader.

Instead, utilize the topic sentence to orient the judge and advance your argument. To orient, give two pieces of information: (1) the deciding court; and (2) the factual holding. The deciding court is more important information than the actual name of the case because it is more important for the judge to know immediately if the decision is binding. This is particularly true when you will be relying on both binding and persuasive cases. Next, inform the judge of the factual holding -- what the court decided in the particular case. Too often attorneys want to write mini-mysteries that build to a conclusion with the court's decision. Instead, tell the judge up-front what the decision was and then how the court reached that decision. Doing so will make it easier to follow your analysis. For example,

"The Minnesota Supreme Court held a noncompete was not supported by consideration ..."

The second part of the topic sentence should advance your argument by focusing the judge on one or two facts that led to the court's decision. Make sure that you focus on facts rather than just the court's legal rule. For example,

"The Minnesota Supreme Court held a noncompete was supported by consideration because the employee received a promotion solely due to signing the agreement."

Of course, those one or two facts that you select should be facts that you later argue are analogous to your case. If done properly, the topic sentence can be a persuasive part of your document; it makes it clear that a binding court held in a certain way based upon a particular fact or two. If you have framed your issue and written your statement of facts to make clear that the same fact or facts are present in your case, then the judge will begin to see your argument before it is ever even presented.

Presenting the Decided Case

Remember that the purpose of the case illustration is to provide a basis for you to argue that your case facts are so similar to the facts in the decided case that the decision must be the same. To accomplish this, the court must first understand the facts of the decided case.

Tell a story and do so completely, but concisely. Nearly everyone learns and understands better through the use of stories. Most attorneys repeatedly have to look up statutes that they use on a regular basis, but can recall the facts of a Brady Bunch episode they last saw ten years ago. So, after your topic sentence, begin by briefly summarizing the story of the case. For example,

"In Davies, the employee had been sued for violation of a noncompete agreement after he left the family insurance business to start a competing enterprise."

After the initial sentence or two, focus your facts solely on those that are relevant to the court's analysis. It can take some time to condense a lengthy opinion down to a few sentences, but doing so will ensure that your illustration is focused on the key facts of the decided case.

To edit your case illustration, wait until you have finished your arguments. Then, compare the arguments to your case illustration. Check each fact in your illustration and see if you specifically utilized it in your argument. If you did not utilize it, determine if the fact is absolutely necessary for the reader to understand the court's analysis. If not, edit it out. While this may be a bit laborious, the result will be an illustration that is tightly focused and highly effective. As Mark Twain once wrote: "If I had more time, I would have written less."

Don't try to present the story and argue your case at the same time. Imagine visiting a car dealership, asking the salesperson about the interior of a particular vehicle, and getting this response: "It has real leather and a digital dashboard. Should we write up a deal?" Most customers would simply walk away from this overly aggressive salesperson.

The same thing often occurs when attorneys write out case illustrations and try to argue their case at the same time: "The employee in Davies received a promotion, as did Mr. Jones, who became a regional supervisor a year later." Instead, consider the case illustration an "objective" entity separate from your argument. The goal with the case illustration should be to present the case in a tone and manner that suggests you are only informing the court of the law, not trying to persuade.

Of course, you will want to present the facts and analysis that you believe will support your argument. The question that arises is: When can you withhold a "negative" fact from the decided case and still be seen as trying to present the case objectively (even after your opponent has picked away at your case illustration)? Here is a fairly simple test: Imagine that the judge asks you why you didn't include the particular fact. If you can reasonably respond with "That fact is not relevant because ...", then you have reasonably omitted the fact. That does not mean that the court will necessarily agree with your interpretation of the case, but it should ensure that you will not be perceived as trying to mislead the court.

Recount the facts the court utilized to reach its decision. To be convinced that a case is binding, the judge must understand precisely which facts the appellate court relied upon in reaching its decision. Too often attorneys substitute the legal rule or holding for the precise factual analysis needed. For example,

"The court held that the employer must provide the employee with a real advantage in exchange for signing."

While the above is certainly accurate, it is only the legal rule and it does not give the court any basis from which to conclude that the facts of the decided case are similar to your case. Instead, you must show how the court applied the rule to the facts of the case, e.g.,:

"The court held that the employee received a real advantage because he received a promotion, increased responsibilities, and industry training as a direct result of signing the noncompete agreement."

Following the above tips should help in creating a case illustration that provides the basis for a successful case law argument.

KENNETH R. SWIFT is an attorney and serves as an instructor in legal research and writing at Hamline University School of Law.