OPENING STATEMENT: Research on Use of Case Law

BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

For a recent law-review article, a professor at Texas A&M University School of Law undertook a labor-intensive and thoughtful empirical study of the ways advocates and decision-makers use case law. The results are informative and offer insight into how to use case-law authority to improve your chances of winning.

The article, by Professor Brian N. Larson, is called “Precedent as Rational Persuasion.”1 Professor Larson assembled a corpus of 199 documents: advocates’ trial briefs and the court opinions responding to those briefs. He and his assistants then categorized “all citations to and discussion of a court opinion in a section of a legal argument to support the assertion of the author’s claim in that section of argument.”2

In other words, for each citation to a case, he assessed how that case was used. (Some uses overlapped.)

Larson identified five recurring ways that advocates and judges use cases:

1. Rule: as support for a legal standard that can be applied to facts to reach an outcome.

2. Quotation: as the source of a quotation.

3. Example: a description of a prior court’s decision under the relevant law; this use often included the prior case’s facts and outcome and could be used for analogy or distinction.

4. Why: as a source for a policy underlying or supporting the law in the area under consideration— the why of a legal rule or standard.

5. How: to support a generalization about what courts often or usually do in cases like the one under consideration—how courts generally resolve disputes of this type.3

These case-law uses aren’t surprising given the way legal analysis usually works. We might imagine a judge asking these kinds of questions:

• “What’s the governing standard?” (rule)

• “Who says so and what do they say?” (quotation)

• “Tell me about a previous case that, under our precedential system, supports your outcome.” (example)

• “What policy supports this legal rule?” Or, “Why does our system sustain such a rule?” (why)

• “How have other courts faced with this question resolved it?” (how)4

The first interesting result Larson found was the ranking of most-frequent to least-frequent uses of case law. The order presented above is also the order of most frequent to least-frequent use of cases in both the trial briefs and the judicial opinions he assessed. In other words, trial-level legal writers, both advocates and judges, used case law in this order from most- to least-frequent:

1. Rule

2. Quotation

3. Example

4. Why (policy)

5. How (generalization)

Given the way our common-law system of precedent works—or is supposed to work—these results are sensible and reassuring. Legal writers and decision-makers rely on established legal rules and concepts; they quote those legal concepts—suggesting precedential validity; and they use prior examples as guides for resolving disputes.

But what’s interesting emerged when Larson correlated the use of case law with outcome. Although he alleges no causal relationship, his article supports the following correlations:

• Winning briefs tended to contain more why (policy) than losing briefs.

• Winning briefs tended to contain more how (generalization) than losing briefs.

The takeaways from Larson’s study are subtle and far from openand-shut, which he acknowledges.5 But I’ll offer my own advice here:

First, if you want your trial brief to look and sound like a normal trial brief (and who wants their brief to strike the court as odd or unconventional?), you’ll continue to make thorough and careful use of cases to do three customary things: support legal rules; serve as the source for quotations of legal rules and concepts; and present case examples that have applied those legal rules.

Second, you’ll find a way to include in your brief some “how” and “why”: why our legal system supports the legal rule you want applied and how previous courts have decided cases like yours. Those uses correlate with winning. AL

Footnotes

1 Brian N. Larson, Precedent as Rational Persuasion, 25 Legal Writing: Journal of the Legal Writing Institute 135 (2021) (Larson’s article is long, complex, and statistically intense; the content in this column is simplified and generalized).

2 Id. at 140.

3 Id. at 169-70 (describing the five types).

4 Id. at 173.

5 Id. at 199.