Analyzing Case Law

[joseph sugarman]

In my opinion, based on the information imparted to me years ago by attorneys and paralegals whom I respect both for their knowledge and their integrity; there is a proper way to analyze case law. The purpose of analysis is to determine if a case from the past is applicable to a current case or legal discussion in which one might be involved. The method used is to discover as many points of similarity between the older case and the present case or discussion. If four points of similarity can be discerned, it might be said the historic case cited is perfect to the existing, current condition. Any fewer points of similarity reduces the applicability of the cite. It does not of necessity make the old case useless, in total, just less useful to the current condition.

The corollary to this is that if there is more than one older case with four points of similarity, that is an even better proof of applicability. Other cases with less than four points might also be applicable. There are a number of modifying considerations to additional cases which need not be discussed at this time.

The four points of similarity are: the importance of the court opinion in the older case and its relevance to the current jurisdiction; the older case should be in reference to the same general topic as the current one or discussion; the same set of facts and elements should be in common to both; and the older case should have produced a win as a decision. There are those who for the sake of description have named the above, the Rule of Compatibility.

How the case opinion was reported is the first consideration. There are slightly different rules for using federal and state cases.

In order of the importance of the decision at the federal level are: The Supreme Court Reporter or the U. S. Reporter– both report decisions of the Supreme court–, next is the Federal Reporter followed by the Federal Supplement. There are other federal reporters such as the Tax Court Reporter, the Court of Claims reporter, military reporters and I am sure others. They are not germane at the moment.

Another consideration is that except for federal cases involving state issues, citing any level of state court holdings is generally irrelevant in a federal issue. As with every generality in discussing the law, there are sometimes exceptions.

At the state level the rule for citing cases is slightly different because the country is divided into geographic reporting. Several states are placed into the Atlantic Reporter, Northeastern Reporter, Southern Reporter, South Eastern Reporter, South Western Reporter, Pacific Reporter and Northwestern Reporter. Additionally, California has its own reporter. There could be some other states with their own reporter, though in general, when you see a named state reporter; it is titled state cases of a given titled geographic reporter.

For a current federal question, the ultimate is to find a Supreme Court case which contains three other point supports for a position. It is of paramount importance to ascertain the decision of the Supreme Court has not been overturned by another Supreme Court decision. Should there be no Supreme Court case, the next best is to find an Appellate Court decision in support. The last resort at the federal level would be a reported District Court decision. A bonus, at any level, would be to have a case which contained a decision of a Case of First Impression or a Landmark Decision that supports a current position.

Using the state reporters is somewhat more limiting in this sense. While it is not altogether inappropriate to cite from other reporters; it is best to cite from the geographic reporter containing the cases of the state in question. It is not necessary, however, to limit the research to the same state, just the same reporter. After that consideration, the Rule of Compatibility, as described above, applies.

To be perfect in support of a current position an older case should also be supportive in three other areas. The first is the older case should be about the same general subject as the current one or discussion. The second is the elements and the facts of the case, whether civil or criminal should be the same. The third is the deliberations of the case should follow the same line of thinking, and the decision of the older case should be a win, indicating the likelihood of a win for the current position based on the presumption of the same line of thinking.

The general rule of similarity is based on the idea that only cases of similar circumstance will contain elements, facts and decisions applicable as appropriate. Of course, with any rule there are always some exceptions; but they are quite rare.

Whether the case is civil or criminal, there will be no doubt all of the elements, as appropriate, will be exactly the same because of the requirements of the strict rule of pleading. However, the facts of the older and newer case or discussion probably will not be exactly the same. It is more usual the facts are mostly the same. Perhaps this condition can only be fully understood by analyzing two, otherwise perfect, cases side by side; but that is left for another time.

The deliberations of the court in the older case should follow the same line of thinking as the theory of the newer case or discussion. The easiest indication of the existence of this condition of similarity can be found in the head notes of a case. These are the short statements found just below the style of the case, but above the complete statement of facts, elements, deliberations and decision. If the majority of these are similar in each case, it is a sign the older case is probably appropriate to the current one. But, beware of head notes. Reading and comparing only them can lead to disaster.

The decision of the older case should be a win. All other conditions of similarity being equal; this last condition being met should give every indication of a win in this case or discussion.

Perhaps in the future some of us can discuss Shepardizing and Digesting, as well as the use of law reviews and law journals.

[palani]

Case law existed before Shepardizing. Common law existed before case law; that is to say, before extensive reliance upon reporters. Common law is also termed lex non scripta or unwritten law for a reason. But that was in the days when men could think but couldn't write really well as opposed to this age where they write really well but can't think worth a darn. As a result you end up easily being diverted by side issues that have little or no bearing on the real issue simply because there are forces at play that do not want the real issues discussed or decided.

There is a war that is being waged behind the scenes between civil law and common law. Civil law appears to be gaining an upper hand by virtue of rote reliance upon decisions of previous cases where the law stated and not objected to timely is that of statutes. Civil law has always been the law of choice of Louisiana since the French established themselves in New Orleans but the remainder of the country is under the principles of common law. In other words civil law is foreign to 49 of the 50 states. It is not foreign to Mexico or much of Europe. Common law is the law of independence while civil law dictates strictly what is permited and what is forbidden.

As in any war you get to choose sides. Reliance upon statutes and case law built up by reliance upon statutes is the dividing line in this battle.

In my view Shepardizing leads one down a path leading into the enemy camp. What's your view?

[Jerry Pitts]

Originally Posted by palani

In my view Shepardizing leads one down a path leading into the enemy camp. What's your view?

Personally, and IMHO, I would not waste my time or frn's or even REAL money, if it were openly circulated, on the likes behind Shepardizing case law.

Jerry

[Shoonra]

Shepardizing is not the end-all of legal research, but it helps a lot to know how a decision was treated by subsequent courts. In some instances the earlier decision is regarded as controlling or at least very persuasive, in others the subsequent decisions point to other cases or reasons that lead them to depart from it.

Shepardizing requires time and patience, but if you were to cite a case, particularly an old one, to a court you would probably be asked if that case is still being followed in other cases.

[palani]

Originally Posted by Shoonra

Shepardizing requires time and patience, but if you were to cite a case, particularly an old one, to a court you would probably be asked if that case is still being followed in other cases.

Short response don't cite previous cases. Cite reason. Reason is law. Anything not according to reason is not law. That is to say anything unreasonable is unlawful.

Also, anything not prohibited is mandatory. If something is not legal that presumes that it is equitable instead.

Civil...ization is the process by which a common law crime is made civil.

Civilians are students and experts of civil law and are not simply members of the set that excludes law enforcement officers and members of the military.

There is no corresponding term for proponents of the common law viewpoint. Maybe we need to call them something. I would submit the term commoners or possibly even peasants.

Things are best kept hidden when they are in plain view.

[Chinese Panda]

Originally Posted by joseph sugarman

How the case opinion was reported is the first consideration. There are slightly different rules for using federal and state cases.

Another consideration is that except for federal cases involving state issues, citing any level of state court holdings is generally irrelevant in a federal issue. As with every generality in discussing the law, there are sometimes exceptions.

Could you give an example of an exception?

Originally Posted by joseph sugarman

At the state level the rule for citing cases is slightly different because the country is divided into geographic reporting. Several states are placed into the Atlantic Reporter, Northeastern Reporter, Southern Reporter, South Eastern Reporter, South Western Reporter, Pacific Reporter and Northwestern Reporter. Additionally, California has its own reporter. There could be some other states with their own reporter, though in general, when you see a named state reporter; it is titled state cases of a given titled geographic reporter.

Using the state reporters is somewhat more limiting in this sense. While it is not altogether inappropriate to cite from other reporters; it is best to cite from the geographic reporter containing the cases of the state in question. It is not necessary, however, to limit the research to the same state, just the same reporter. After that consideration, the Rule of Compatibility, as described above, applies.

So, are you saying that if I were in say Arizona, that I can cite cases from Oregon, Washington and California as long as there are in the Pacific Reporter?

I was under the impression that I should really only cite cases from my state.

I myself am in California, if you are saying that I could cite cases from the California Reporter AND the Pacific Reporter?

Originally Posted by joseph sugarman

Perhaps in the future some of us can discuss Shepardizing and Digesting, as well as the use of law reviews and law journals.

I'd like that, but I wouldn't have much to offer in the discussion.

[joseph sugarman]

So, are you saying that if I were in say Arizona, that I can cite cases from Oregon, Washington and California as long as there are in the Pacific Reporter?

The obvious first choice are those cases from you own state if they are on point. Courts are supposed to give full faith and credit to any case cited, in this circumstance, the Pacific Reporter.

I was under the impression that I should really only cite cases from my state.

Your state should always be your first choice, all other conditions being equal. But if a case from another state has four points and the best case from your state only has three or fewer; quote the best case first, and use the others only for what support they can offer.

I myself am in California, if you are saying that I could cite cases from the California Reporter AND the Pacific Reporter?

Almost every case cited in the California Reporter will end up in the Pacific Reporter, but not always. Additionally, sometime the California Reporter will have the slip notes done quicker.

[joseph sugarman]

Sorry, I missed the question about exceptions to the quoting state cases in federal cases.

No, at the moment I cannot. I do not have access to a decent law library. There have been momentous decisions on certain issues from State Supreme Courts which have been included in Federal Court cases. I just vaguely remember a number of years ago seeing such a situation. It was more than likely in the American Law Reports. I am sorry, I cannot even remember what the subject I was reading.

[Shoonra]

Originally Posted by Chinese Panda

I was under the impression that I should really only cite cases from my state.

You are correct.

Originally Posted by Chinese Panda

I myself am in California, if you are saying that I could cite cases from the California Reporter AND the Pacific Reporter?

Sugarman has it wrong. Until 1959, West's Pacific Reporter reprinted decisions from both the official California Reports (Cal.) -- the state Supreme Court, and California Appellate Reports (Cal.App.) -- the state Court of Appeals and the Appellate Dept of the Superior Court. In 1959, West began its California Reporter and thereafter Cal.App. appears only there while Cal. continues to appear in both Pacific and Cal.Rptr.

1 Cal.Rptr. (1959) = 53 Cal.2d & 175 Cal.App.2d; at the same time 347 P.2d reprinted 53 Cal.2d but not Cal.App.

You might also consider decisions from the federal district courts in California and cases appealed from those courts to the 9th Circuit Court of Appeals.

[joseph sugarman]

Thank you for the much more definitve and correct analysis. I have heard, anecdotally, you a law librarian. Of course you would have better, and more current information.

Additionally, I am constrained by my bias of, in general, only reading older case law. I only use to use a more current California one only if it overturned an older case.

I have to disagree with you though about only quoting cases from the state you are in. I had a case in Oklahoma in 1994 or so. The only case on point, that supported my position, was a Supreme Court decision from the State of Washington. I used it because it had all the other points covered in my favor. The District Court of Tulsa County of course would not even look at it. The Oklahoma Court of Criminal Appeals did.