Legal Research

"Explaining a Case but Omitting the Procedural Setting and Result"

Posted by Wayne Schiess: "Law students, and some lawyers, make this mistake.

They describe a key precedent but don't give the procedural setting (motion for summary judgment, jury trial, etc.) or the case's result at the trial level (summary judgment, jury verdict, etc.) and on appeal (affirmed, reversed, etc.). That's usually a mistake. Mark Herrmann thinks it's a mistake too:

Why do I insist on a rigid formula [give the procedural setting and result of every key case] for discussing cases? Because my clients prefer to win.

When I discuss a case in a brief, I think carefully about the persuasive force of the precedent. I prefer to cite cases where the trial court did what my opponent is seeking here, and the appellate court reversed.

* * *

The second most persuasive precedent is a case in which the trial court did what I am asking the trial court to do in my case, and the appellate court affirmed.

Mark Herrmann, The Curmudgeon's Guide to Practicing Law 4 (ABA 2006).

If your memo doesn't tell Mr. Herrmann the procedural setting and result, he will be annoyed. All legal writers take note."

The active link is available at the source site listed below.

Source: Legalwriting.net Blog, 29 July 2009

Full post as published by Stark County Law Library Blawg on July 29, 2009 (boomark / email).