by Wilton H. Strickland

America’s legal system is based on the common law. This means that we resolve disputes by examining prior, similar disputes and applying the same rule of decision, which is considered binding precedent. The thinking is that people in similar circumstances are entitled to expect similar results, at least until the habits of the people (i.e., “the commons”) change and generate a new rule of decision. Our approach stands in stark contrast to the civil-law system, which predominates in most other countries; fixates on written legal codes rather than the evolving habits of the people; and pays no mind to precedent, thereby allowing judges to hand down any number of unpredictable and inconsistent rulings.

Because of our legal system, an attorney’s ability to research case law plays a critical role in providing effective representation. It is almost never enough to find a statute or regulation that appears favorable; instead, the attorney should find at least one court decision that applies the statute or regulation in a favorable way. With this in mind, here are some useful techniques for finding the case law you need.

Identify The Ideal Case

Before you search, you first should identify precisely what you want to find. This usually boils down to four key criteria:

  • A case from the same jurisdiction where your case is located;
  • A case decided by an appellate court (whose opinions are considered binding precedent in that jurisdiction);
  • A case with same type of issue as in your case; and
  • A case whose ruling on the relevant issue is the same type of ruling you want.

Sometimes you will not be able to locate a case with all of these elements. If that happens, the best you can do is find a case with as many as possible.

Calibrate Your Search Geographically

Since your primary goal is to find precedent from your own case’s jurisdiction, start by limiting your search to that jurisdiction alone. In some states this is fairly easy because there is only one appellate court, i.e., the supreme court. In other states there are also intermediate appellate courts, so focus on the supreme court and the specific appellate court whose jurisdiction is involved. This same approach should work for federal cases that hinge on state law, but in any federal case you should also look for precedent from that federal circuit and from the United States Supreme Court.

If you have exhausted your search in the relevant jurisdiction without any luck, it’s time to expand the geographical scope to other jurisdictions. At this point the decisions you find are not binding, but rather merely persuasive, so you must decide what authority indeed is persuasive. It might be a “majority rule” that most other jurisdictions have adopted. It might be a decision from a neighboring jurisdiction whose rulings are often cited in your own. It might be a decision interpreting a uniform code that your jurisdiction also has adopted (e.g., the Uniform Commercial Code, the Uniform Probate Code, etc.). It might be a decision interpreting a Restatement provision that your own jurisdiction considers authoritative. And it might simply be a thorough, well-written, and persuasive opinion whose logic is difficult to refute.

Calibrate Your Search Thematically

It is often not enough merely to start typing words and phrases into a general search whose only constraint is your jurisdiction. Too many attorneys do this, and it’s an approach that most likely will generate too many results with too little in common. Unless you’re searching for a highly irregular word or phrase, it’s much more effective to place thematic constraints on your search.

One of the best ways to put a thematic constraint on your search is to take advantage of the headnotes and key numbers used by databases such as Lexis and Westlaw. If you target your search to those particular cases bearing the headnote most applicable to your own case, you will get a much smaller result that is easier to review, and which can be made even smaller by using words or phrases as search terms at that point.

If you’re unsure of what headnote or key number to use, a good place to start is with any decisions you already possess that discuss the issue in question, either favorably or unfavorably. The decision will most likely list a headnote for the relevant issue, and you can launch your search from there. Even if you don’t already have a decision to work with, take a look at the full index of headnotes and key numbers provided by Lexis and Westlaw, and zero in on the ones most relevant to you. You may not find the exact headnote you want, but you can at least rule out many others and start searching from a broad headnote that likely covers the relevant subject matter.

Another effective method for narrowing the thematic scope of your search is to review the annotations to any statutes, rules, or regulations that play a role in your case. For example, if you need authority concerning the admissibility of expert opinions in a federal case, you can start with Rule 702 of the Federal Rules of Evidence and look for any annotated cases that appear similar to your own. If you find any such case, you can then make use of any headnotes or key numbers in it to locate other useful authority.

Be Sure To Read The Entire Decision, Not Just The Headnotes Or The Main Holding

All too often attorneys fixate on headnotes without plumbing a decision’s hidden depths. This is dangerous because headnotes are mere editorial comments by the publisher and do not constitute the court’s opinion in any way. For example, an attorney might ignore a highly favorable decision simply because it lacks an explicit headnote stating what the attorney wants to hear. Alternatively, a headnote that appears favorable and on-point could lull the attorney into citing the decision, when in fact the court’s opinion does not address the issue, says something different, or in some cases says the opposite.

A classic example is the landmark decision by the U.S. Supreme Court in Santa Clara County v. S. Pac. R.R, 118 U.S. 394 (1886), which supposedly holds that corporations are “persons” and thereby entitled to civil rights under the Fourteenth Amendment. The Recorder of the Court, J. C. Bancroft Davis, wrote in his commentary (a headnote) that “corporations are persons,” but the decision itself says no such thing. Researchers have found a handwritten note in the J.C. Bancroft Davis collection in the Library of Congress, from Chief Justice Waite explicitly saying that “we did not meet the constitutional issues in the case.” Although subsequent judicial decisions misconstrue Santa Clara on this point, practicing attorneys cannot afford to be so careless.

Do Not Ignore The Dissenting Opinion

It’s tempting to write off the dissent as irrelevant. After all, the dissent is not the court’s holding and has no binding effect. But attorneys should take time to read the dissent for two major reasons.

First, the dissent often clarifies the majority opinion, even if only to attack it. This makes it easier to confirm and summarize the majority opinion, which can be particularly useful when the opinion is muddled or drowned out by wordy concurrences.

Second, it often happens that your opponent’s arguments parallel what the dissent says. This gives you a strong legal and rhetorical weapon against your opponent, whose arguments you can now characterize as entirely wrong and at odds with controlling precedent.

Read Through All Cases Cited Your Opposition

On many occasions when you must respond to an argument, you will find that the case authority cited by your opposition actually favors you, since the opposing counsel probably relied on a headnote rather than perform a thorough review of the decision.

Even if that’s not the case, authorities cited by your opposition give you a strong starting point for your own research. You can follow up on the relevant headnotes, pull the authority’s internal citations, and of course Shepardize the authority for any subsequent treatment.

Shepardize All Your Case Authorities

This one almost goes without saying, but you should verify that whatever case law you are citing remains current and valid. Do not rely merely on the yellow or red alerts used by Lexis and Westlaw. Much like headnotes, these alerts reflect someone else’s editorial judgment and require your own, independent analysis. A decision with a red alert might still be perfectly valid and citeable for the point you want to make. By the same token, a decision with no alerts might have been rendered useless for your purposes by a recent statute, rule, or even a decision that has not been published on Lexis or Westlaw just yet.

What To Do With Negative Case Authority

There are times when you confront cases whose facts resemble your own, but which feature a holding that is hostile to the argument you want to make. The first thing you need to do is verify whether it is binding precedent; in other words, you should confirm that the decision was issued by an appellate court in the same jurisdiction as your case, and that the decision remains valid.

If the negative authority indeed is binding, you have an ethical obligation to cite it in your submissions to the court. However, all is not lost. You might be able to find other binding authorities that reach a different conclusion. If you’re appearing before the appellate court that issued the decision in question, or if you are before a higher court, you can argue that the case was wrongly decided and that a new rule should be adopted.

If the negative authority is not binding — for example, if it is the decision of a trial court or of a court from another jurisdiction — you do not have an ethical obligation to cite it. However, it’s usually the better practice to address the negative authority rather than hide it, explaining why it is not persuasive. This enhances your credibility as an honest practitioner, and if you address the authority first, it deprives your opponent of the chance to hold it up as a major find.


Category: Law Practice

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