Thursday, April 28, 2016

Citing Authority may be Critical to Success

Making arguments to a tribunal is dependent upon integrating appreciation and understanding of two elements into an explanation. First, the facts of your situation are critical. As important is an understanding of the law and how it supports the outcome you wish. Understanding how to cite authority (law) may be critical to winning the argument.

A phrase has caught my attention over the years. Many an attorney argues her or his point with "the case law on this is legion." The suggestion being that the appellate courts have discussed the issue over and over and that the outcome this attorney wants is therefore so obviously correct that there can be no argument. No doubt, there are many legal issues that actually fall in this category. It reminds me of a 1991 release The Last Boy Scout in which the protagonist Joe Hallenback (Bruce Willis) repeatedly reminds us "the sky is blue, water is wet . . .." Hard to argue with. Facts are facts sometimes. 

So, there are certainly instances in which the "case law is legion." However, this cliché is overused. It has become a caricature that no longer evokes the intended reaction of trust or reliance. Instead, this statement and others like it raise questions. In a recent conversation at a conference this phrase was used to describe the state of the law. A second attorney in the group responded with "can you name one case?" The first attorney could not; could not name one case that stood for the proposition/argument that was being advocated. It made for an interesting discussion. If there are really that many examples, if the "case law is legion," shouldn't we be able to name one example?

If there is authority that supports your argument, I recommend finding it and bringing it to the tribunal's attention. I recommend bringing or citing a case. Remember in this context that there is a hierarchy of decisional law. If you can cite a Supreme Court case that might be best. If not practical, then a controlling appellate court case would be beneficial. In Florida workers' compensation, this would likely be from the Florida First District Court of Appeal. If that is not available, a persuasive appellate court case (from one of the other District Courts) might be helpful. The hierarchy may differ from state to state, but the logic still applies. Trial judge decisions are more available now than ever before, but those decisions are more likely to be persuasive than controlling. 

This reminded me of another interesting legal argument that came to my attention recently. A young associate is arguing a motion before a trial judge. The associate works for the firm of Smith, Jones and Green (a fictional law firm used to illustrate this example). One side of this particular case provides the trial judge a cogent, logical argument for a particular outcome in the case. Copies of two appellate cases (as suggested above) are provided to the judge, which each support the argument. 

Then it is the young associate's turn. The associate begins with "judge, that cannot be the law." And, continues: "I discussed this case with Mr. Green, who has been practicing workers' compensation for thirty years, and if that were the law I am sure he would have told me." This argument is questionable on a couple of levels. Primarily, Mr. Green is not an appellate court. Even if he (or your partner) "wrote the book" on workers' compensation, that book would be an interpretation of those statutes and appellate cases that recite and define the law. Mr. Green, in this example, is at best a "secondary source," and at worst is just a rumor. 

But as important, in this example, Mr. Green has made no representation whatsoever. Even if one were to accept that Mr. Green is the "be all and end all" of legal knowledge, the undeniable and indisputable "font of wisdom," he has still made no representation. The young associate is not asserting that Mr. Green told her/him that this is or is not the law. The associate is asserting that Mr. Green told her/him nothing and that if opposing counsel's argument were true then Mr. Green presumably would have spoken up and said something. In other words, the young associate actually expects the trial judge to disregard the proffered legal authority because Mr. Green apparently, purportedly, never said anything. This "Mr. Green would have told me" argument is perhaps not the best first choice. 

In another recent example, I ran across a trial order that explained the facts, recited the law, and adjudicated the issue. That is not uncommon. But, this order caught my eye because the law that was recited was not the plain language of the statute itself. It was not controlling authority from the Supreme Court or the First District Court. It was not persuasive authority from another Florida District Court. It was not another trial judge decision, or an interpretation of a similar statute in another state. 

The authority cited in this order was Dubreuil's Florida Workers' Compensation Handbook. This is an example of what lawyers call "secondary" authority. Some would argue that it is even less authoritative, calling it instead "tertiary" authority. It is a book that provides the author(s) interpretation of what the statute or controlling cases say. It is the author's or authors' opinion of what the statute or court cases say. There are a great many publications like this, which provide an interpretation or opinions about the law. 

This particular book was originally written by an insurance professional named Dubreuil, who is deceased. As it was originally written, it was an insurance professional's opinion of Florida's workers' compensation law. It was not written by an appellate court, or a trial judge or even a lawyer. Since it was originally published, it has become part of the Lexis library, and there are now attorneys involved in updating and editing the book. But it remains at best a secondary source in which someone's opinions about the workers' compensation law are expressed.  

There are many secondary sources that are relied upon in deciding cases. Perhaps the most noteworthy secondary source on workers' compensation is Larson's Workers' Compensation Law written initially by Professor Arthur Larson, of the Duke University School of Law. Arguably the most comprehensive secondary source on Florida workers' compensation law is The Florida Workers' Compensation Handbook written by attorney Leo Alpert and later edited by Jonathan Alpert, an attorney, workers' compensation judge and professor at Stetson University College of Law. Similarly, perhaps the most noteworthy secondary source on Florida evidence law was written by Charles Ehrhardt, a professor of law at Florida State University (Professor Ehrhardt's book has been cited by appellate courts more than 500 times). Each of these books has been cited and relied upon by the Florida First District Court of Appeal and The Florida Supreme Court. And, there are some examples of appellate courts citing Dubreuil's Handbook

In a related side note, I heard of a lawyer once arguing that she/he had attended Florida State and took an evidence class taught by Professor Ehrhardt. She/he apparently argued against an evidentiary interpretation with a similar "I took evidence with Professor Ehrhardt Judge, and if that (the other side's argument) were the law I am sure Professor Ehrhardt would have mentioned it." Not much different than the "partner Green" argument discussed above.

These scholarly treatises are the opinions of others about the law. There are times when their opinions are found persuasive and even adopted by tribunals. They can be great tools in the research process. These sources can lead to court opinions that are persuasive or controlling authority, and they can assist one with understanding those statutes and cases. 

But, at their best, these publications are all opinions. It can be highly persuasive when the opinions of scholars, lawyers, and judges agree with your own, but they remain opinions. It is more persuasive if the argument can also be supported by a statute and the cases which are cited in these books. It is suggested that only when one cannot find statutory or case authority should one resort to citing such secondary sources. And then, it is perhaps more persuasive to argue the opinions of law professors and attorneys than to rely on those without such credentials. 

Another side note: never argue "I read it on Judge Langham's Blog" as legal authority for an argument. This blog has the authority and persuasive effect of a Bazooka Joe comic from a bubble gum package (and I am being generous with myself here). 

I had the chance to discuss the Dubreuil's Handbook example with a fellow judge recently. At one point he asked "Dubreuil was not a lawyer?" I took from that there is a chance this author's credentials are not well known. So, if you do decide to cite a secondary source, I recommend knowing the background of the author. In a hearing, during an argument, is not the time to learn of an authoritativeness question.

Thus, three examples of interesting legal arguments. Bloviating with "the case law is legend" (but I could not find a single example to cite or bring) is not likely to win arguments. Supporting your arguments with what some other lawyer told you (or worse did not tell you) is also unlikely to be persuasive. Advocates should remember the hierarchy of authority from statutes to controlling cases and persuasive cases. Secondary sources should be used to locate and help understand those, but should be cited sparingly. If forced to cite such a secondary source, it will perhaps be a stronger argument if the source was written by a law professor, judge or lawyer.  

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