Official Publication of the Minnesota State Bar Association

Vol. 61, No. 3 | March 2004
Classifieds | Display Ads | Back to Contents

Writer’s Corner:
Use and Argue the Case Law
By Kenneth R. Swift

In the October 2003 edition, this column explored ways to effectively present case law to the court through case illustrations.  Of course, this only sets the ball on the tee; to be successful you must next hit the ball on the green.  This article provides some tips on how to organize your case illustrations and make effective case law arguments based upon those case illustrations.  These tips should be particularly useful in situations where you are required to argue how your case fits within a substantial body of existing case law.

ORGANIZATION

If you’re going to be arguing an issue that has several precedents and in which you will be presenting several case illustrations, you basically have two options on how you organize your case illustrations and case law arguments.

  • Either:
    case illustration;
    arguments based upon that case illustration;
    case illustration;
    argu    ments based upon that case illustration;
    (process repeated until all cases are presented and argued).

  • Or:
    all case illustrations first;
    all arguments based upon the case illustrations together.

In most situations, the second option is preferable because that organization allows for a natural synthesis of the cases and arguments.  If you utilize the first option, it will be difficult for the court to understand how all of the applicable law combines to support your position.  As discussed below, one of your goals is to show the court how your case fits within the multitude of existing cases.

COMPARISON

Compare your case directly and specifically to the decided case.  Remember that the entire purpose of writing case illustrations is to allow you the opportunity to convince the judge that your case is so factually similar that it must be decided the same (or different, if you are attempting to distinguish a case).  The following should help you accomplish this goal.

1.  Make it clear exactly which facts you think are similar.  The case law argument should not be a mystery that the judge is left to decipher.  Your goal should be to eliminate all guesswork and make it absolutely clear to the judge how you think your case and the decided case are similar.

One common problem is to simply refer to the decided case without referring to the comparable fact.  For example: “Like the employee in Davies, Mr. Jones received four weeks of vacation because he signed the noncompete.”

While the judge may recall the comparable fact from Davies, there is no reason to ask him or her to do so, for a couple of reasons.  First, the judge may not recall the comparable fact.  More importantly, there is no reason to make the judge do mental gymnastics.  Secondly, even if the judge recalls the facts of the deciding case, the comparison may not be entirely clear.  Unless a decided case is highly on-point factually, you are probably making some more general comparisons.  The above argument presented more directly could read like this: “Like the employee in Davies, who received training and a promotion in exchange for signing a noncompete agreement, Mr. Jones received four weeks of vacation for signing.”

A good basic formula to follow for case law comparisons is: “Like the (Person, Entity in decided case) in Case X who did (_______), (Person, Entity in your case) did (_______).”

While the above formula may seem a bit pedestrian and while you may choose not to use the precise formula for any of your case law arguments, the idea encompassed by the formula is vital: making it precisely clear how the facts from the decided case compare to the facts of your case.

2.  Do not simply compare to the conclusion you want.  A common, and enticing, problem is to compare only to the conclusion that you would like the court to reach.  For example (in a case where the issue is whether the employee received a “real advantage”): “Like the employee in Davies, Jones received a real advantage.” 

This argument provides little to the court.  Instead, remember the goal in presenting case law facts to the court: to show how the facts of your case are similar (or different) and should, therefore, lead the court to the same (or different) result.  Determine which facts lead the court to this conclusion and compare those facts.

SYNTHESIS

Synthesize all of your arguments.  If the issue you are dealing with pertains to a body of prior decisions, ultimately the court is going to have to determine how your case fits within the existing cases.

1.  Synthesize your case law arguments.  Whenever possible, organize your case law arguments around a specific issue or fact, rather than case-by-case.  Following this format will make it easier for the court to see how the facts of your case fit within the body of existing law.  Of course, before you can organize your arguments in this fashion, you will have to decide (as discussed above) to present all of your case illustrations together.

While sometimes the facts of the decided cases do not overlap, and therefore presenting the arguments case-by-case may be preferable, most often the argument focuses upon how your facts fit within a web of existing case law.  Thus, for example:

Like the employee in Davies, who received training and a promotion in exchange for signing a noncompete agreement, Mr. Jones received four weeks of vacation for signing. Further, this is unlike the employee in Freeman, who received the same pay and benefits as non-signing employees.

is preferable to:

Like the employee in Davies, who received training and a promotion in exchange for signing a noncompete agreement, Mr. Jones received four weeks of vacation for signing.  Further, similar to the employee in Davies ... (followed by several more comparisons to Davies).
Unlike the employee in Freeman,... .

The first set of arguments synthesizes the key facts from the two cases (and certainly you may have more cases), while the second set of arguments requires the court to synthesize the arguments on its own.  While judges are obviously capable of doing so, it is in your best interest to make the synthesis of the arguments as clear as possible for the court.  You can even compare your case to two cases in one sentence; for example:

Like the employee in Davies, who received training and a promotion in exchange for signing a noncompete agreement, and unlike the employee in Freeman, who received the same pay and benefits as non-signing employees, Mr. Jones received four weeks of vacation for signing.

2. Synthesize your case law arguments with your other arguments. Unless you feel that the factual case law arguments you present are so strong that the judge will be left with no choice but to find in your favor, you will need to include arguments based directly on the statutory or case law rules and policy arguments in your analysis.  Do not treat these as separate from your case law arguments, but rather try to use your case law arguments as a “launching pad.” For example,

Like the employee in Davies, who received training and a promotion in exchange for signing a noncompete agreement, and unlike the employee in Freeman, who received the same pay and benefits as non-signing employees, Mr. Jones received four weeks of vacation for signing.  The Davies and Freeman decisions underscore the basic policy underlying the Minnesota Supreme Court’s decisions in noncompete cases: the court will ensure that the consideration given to an employee is more than illusory, but will not go beyond that point and allow courts to make a determination on a case-by-case basis as to the sufficiency of the consideration.  Further, ... .

The above tips will, I hope, help you knock more of your briefs and memorandums “on the green.”  Who knows, you may even become a “scratch” writer. 

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