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January 16, 2014 Articles

Five Tips for the Persuasive Researcher

Five tips for drafting a persuasive piece that will make you shine.

By Eric P. Voigt

The following is a modified version of an article that appeared in the Summer 2009 issue of PP&D.

You just received an assignment to prepare your first appellate brief. You have spent the previous year drafting predictive memoranda. Your heart pounds with excitement. This brief is your opportunity to demonstrate your ability to persuade through the written word. But before you begin your journey, you must understand that the quality of a brief strongly correlates with the quality of the research.

Writing persuasively for a client is different from objective writing. Unlike a research memorandum, where the cases may not be reviewed by your boss or client, judges and law clerks will scrutinize the cases discussed in your appellate brief. As a young associate, you—not the assigning lawyer—are responsible for the quality and accuracy of the rules and arguments in your brief. Each authority must stand for each stated proposition. Accuracy trumps overzealous advocacy. The following five tips will maximize your likelihood of success on appeal.

1. Read cases from the first to the last word. This tip seems obvious but is surprisingly forgotten when a young researcher is pressed for time. When preparing briefs, many young associates find the “smoking gun” quote supporting their argument and then fail to read the remainder of the case. Unknown to the associate, the court may have expressly rejected the quoted proposition five paragraphs later or resolved another issue in the same opinion in a way that is adverse to your client. You do not want a meeting with a partner asking why you did free research for opposing counsel and billed your client for it.

2. Cite Only Your Best Cases. The best cases are not necessarily the first ones you find on LexisNexis or Westlaw. You want appellate judges to know—or at least believe—that you have carefully chosen the cited cases to support your rules and arguments. You should research three types of cases.

First, search for binding cases. What is binding authority for a particular issue may surprise you. For instance, if you are litigating a federal issue in a state appellate court, only U.S. Supreme Court opinions are binding. If you are before a federal circuit court on a state-law issue, only decisions from the state’s highest court are binding. If you are appealing a state issue in a jurisdiction such as Ohio where an opinion from one appellate district is merely persuasive as to panels in other geographic districts, only opinions from your district or the state’s highest court are binding.

Second, find cases with favorable holdings. Do not simply pluck rules from the first cases listed in your search results. A court “holds” on issues that are actually disputed; a court’s restatement of a rule from a prior case is not a holding. Thus, the best cases are those that have applied relevant rules to similar facts and held in a way that favors your client.

Third, search for cases with the most persuasive outcomes. The persuasive weight of a case depends on its outcome and procedural posture. For example, an appellate decision upholding a jury verdict (under the manifest-weight-of-the-evidence standard) is far less persuasive than an opinion affirming the issuance of summary judgment (under de novo review). One highly persuasive case is where an appellate court ruled that a lower court abused its discretion for doing the same thing that your opponent is asking your court to do. Another persuasive case is where an appellate court affirmed a lower court’s decision under de novo review based on facts similar to your client’s situation.

3. Research opinions drafted by your judges. Determine whether the judges for your appeal have addressed the subject matter of your brief. If so, you will not need to convince your judges that the prior opinion is well reasoned. And by citing a decision favorable to your client, you will force the opposing party into the awkward and uncomfortable position of having to argue that your judges were wrong.

In one of my employment matters, the judge’s prior ruling was instrumental in dismissing the complaint against our client. My firm represented an employer in federal court against a former employee who contended that the employment handbook altered his at-will status. To the chagrin of my opponent, I found an opinion from our federal judge (when he was a state appellate judge) where he specifically concluded that employment is presumed to be at will and may be terminated for good cause or no cause.

4. Research with the West Digest System. Yes, the digest is still useful after law school. The digest is an excellent resource to find cases addressing a specific legal topic and is available in print or online at Westlaw.

I will first explain how cases are included in the West Digest System, so that you will understand its utility to find the best cases for your brief. Recall from law school that the digest is a comprehensive index to all reported cases from federal and state courts. It organizes reported cases (but not statutes) by topics and subtopics. The digest does not contain the cases themselves; instead, the digest contains points of law from each case. After a case is issued, the editors of West draft headnotes for that case. Headnotes include not only concise statements of rules from the case but also how the court applied the rules to its facts. Each headnote is then assigned to a topic and a subtopic under the topic, and each subtopic is assigned a key number. There are over 400 topics (e.g., constitutional law and damages) and over 100,000 subtopics. For example, if your issue on appeal was punitive damages, you could locate relevant cases from any jurisdiction by finding the topic “damages” and the subtopic “grounds for exemplary damages” (which is Key Number 91.5).

The digest is quite useful to brainstorm new arguments. To illustrate, assume you are arguing that a statutory provision is ambiguous and that the court should examine the legislative history of the statute. If you found the topic “statutes” and subtopic “what constitutes ambiguity” (Key Number 1102) in the Federal Practice Digest, you would find over 500 points of law (i.e., headnotes) where federal courts have discussed when statutory language is and is not ambiguous. After reviewing those points of law, you could develop a creative argument as to why your statutory language is ambiguous. As a litigator, I often used the digest to develop strategies to defeat class certification. Take advantage of this valuable classification system.

5. Research on the ABA website. Members of the ABA have access to many resources on its website. The various sections of the ABA publish numerous articles on procedural and substantive issues. For example, committees under the Section of Litigation publish quarterly newsletters on topics ranging from class actions to consumer-protection laws to pretrial motions. The articles in those newsletters often analyze newly enacted statutes and recent Supreme Court opinions, and they provide unique insights into complex subjects. Additionally, at the ABA’s Legal Technology Resource Center, you can search the full text of over 400 online law reviews and journals.

By applying the above tips, you will be on the path to writing a winning appellate brief. Importantly, if you have reached this point in the article, then you have already learned the first tip.

Keywords: litigation, appellate practice, young lawyer, research, West Digest System

Eric P. Voigt is a professor of law at Faulkner University Jones School of Law and is also the founder of R+W Legal Consultants.

Copyright © 2014, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).