Choosing the Best Cases: Five Reminders for New Lawyers

by Eric Voigt on December 4, 2013

lawbooks 2To persuade judges, each legal rule in your motions and briefs must be supported with the best authority. Without citations, judges might think that the stated rules and arguments are merely your opinions—which are irrelevant. (It was a hard lesson for me to learn.)

As a new lawyer, your primary job is to find the legal authority that best supports your case. Partners rarely have time to redo your research. You don’t just find the best cases on the first page of your search results on LexisNexis or Westlaw. You want judges to know—or at least believe—that you have thoughtfully chosen the cases that support your case.

Generally, you should focus your research on four types of cases, and you should cite unpublished opinions only when published decisions don’t exist for the issue.

1.  Identify binding cases. Binding authority for a particular legal issue may surprise you. For instance, if you’re litigating a federal issue in a state appellate court, only United States Supreme Court opinions are binding.1 If you’re in federal court litigating a state-law issue, only decisions from the state’s highest court are binding.2 And if you’re appealing a state issue in a jurisdiction such as Ohio where an opinion from one appellate district is merely persuasive to appellate panels in other geographic districts, only opinions from that particular district or the state’s highest court are binding.3

2.  Select favorable holdings. Don’t 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 the relevant rule to similar facts and held in a way that favors your client.

3.  Choose cases with persuasive outcomes. As Justice Scalia and Bryan Garner explain in Making Your Case: The Art of Persuading Judges, the persuasive weight of a case depends on its outcome and procedural posture. For example, an appellate decision upholding a jury verdict under a deferential standard of review is less persuasive than an opinion affirming summary judgment under de novo review. A highly persuasive case is where an appellate court ruled that a lower court abused its discretion by doing the same thing that your opponent is asking your court to do. An appellate decision is also persuasive if the court affirmed a lower court’s decision under de novo review based on facts similar to your client’s case.

4.  Highlight the judge’s prior opinions. If your judge has tackled the subject matter of your brief, you won’t need to convince the judge that the prior opinion is well reasoned. And by citing a decision favorable to your client, you’ll force the opposing party to take the awkward and uncomfortable position of arguing that your judge was wrong. One way to make sure the judge’s clerk knows that the judge wrote the cited opinion is to state the judge’s name in a parenthetical at the end of the citation, like this: Palmer v. Ill. Farmers Ins. Co., 666 F.3d 1081 (8th Cir. 2012) (Murphy, J.).

5.  Cite unpublished opinions sparingly. In federal court, unpublished opinions—those not published in a printed reporter—aren’t binding authority.4 Most state courts follow the same rule.5 Although most unpublished opinions are only persuasive authority, most federal and state courts permit attorneys to cite them. Several states, though, allow attorneys to cite unpublished opinions for only specific reasons (e.g., claim or issue preclusion) or require them to give copies of the unpublished decisions to opposing counsel (e.g., Minnesota).

Ignore these rules at your peril

Following these basic rules will help you cite the best legal authority and give you the best chance of winning your case. But if you want a sure-fire way to lose, consider following the sarcastic advice of New York City Civil Court Judge Gerald Lebovits: When researching cases, be “lame and weak”; don’t bother to “cite binding cases from your jurisdiction” and “quote only from dissenting and concurring opinions.”

Eric Voigt teaches legal research and writing at Faulkner University, Jones School of Law. As the founder of R+W Legal Consultants, he presents interactive CLE seminars on advanced legal research and publishes materials on researching effectively and efficiently. Eric also blogs on how to write persuasive motions and briefs.

(Photo by Alfred Hermida / CC BY 4.0)


  1. See Commonwealth v. Jones, 951 A.2d 294, 301 (Pa. 2008) (“[T]his Court is not bound by decisions of federal courts inferior to the United States Supreme Court.”)  

  2. See Johnson v. Fankell, 520 U.S. 911, 916 (1997) (“Neither this Court nor any other federal tribunal has any authority to place a construction on a state statute different from the one rendered by the highest court of the State.”)  

  3. See State v. Thompson, 950 N.E.2d 1022, 1025 (Ohio Ct. App. 2011) (“[D]ecisions of other appellate districts are not controlling authority for this court.”)  

  4. United States v. Izurieta, 710 F.3d 1176, 1179 (11th Cir. 2013) (“Unpublished opinions are not binding precedent.”)  

  5. See, e.g., Minn. Stat. Ann. § 480A.08, subdiv. 3(c) (West, WestlawNext through 2013 First Spec. Sess.) (“Unpublished opinions of the Court of Appeals are not precedential.”)  

Read the comments below or add one of your own.

Matthew Salzwedel December 6, 2013 at 10:07 am

Colin,

Thanks for your comment about Indiana law.

I hope that more readers will comment about how other states handle unpublished opinions. Generally speaking, I’m no fan of them but, of course, I’ll cite them whenever they help me. Some appellate courts use unpublished opinions to avoid deciding and publishing hard cases and to justify or rationalize sloppy or lazy judicial work product. Some have argued that they’re unconstitutional. But they seem to be here to stay.

Reply

Colin E. Flora December 6, 2013 at 10:48 am

Matthew,

There is one benefit that I have noticed, though rare, that arises in Indiana unpublished decisions. Some appellate judges have found that dissents and concurrences within unpublished decisions are a useful venue for discussing problems with the current state of law that mandates the outcome.

See Bogolia v. Danielson, 978 N.E.2d 756 (Table), No. 64A04-1201-CC-42, 2012 WL 5378144 (Ind. Ct. App. Nov. 1 2012) (Barnes, J. concurring) (“I concur in full with the majority opinion. I only write to vent my frustration with the legally mandated result.”); see also Lewis v. Smith, 905 N.E.2d 531 (Table), No. 46C01-0508-CT-261, 2009 WL 1085141 (Ind. Ct. App. Apr. 21, 2009) (Robb, J. concurring) (“In short, I concur with the result reached by the majority based upon the language of the statute, but would encourage the legislature to take a second look at the statute.”).

My general preference toward citation of unpublished decisions is to follow the lead of the handful of states that permit citation to an unpublished decision only if there is no published decision that addresses the issue. I think that provides a very useful approach in which an unpublished case is permitted its desired shielding through the unpublished status unless there is no alternative. At the very least, I favor the proposals to allow unpublished decisions to be at least citable persuasive authority. To me, it makes little sense why the views of a law professor espoused in a law journal can be freely cited and, merely because of the demarcation as unpublished, the views of a three judge panel of jurists who actually make law in a state cannot. I have found it the ultimate irony that an unpublished decision, if written about in a law journal or treatise, could ultimately be citable through the article/treatise but not in its original form.

Reply

Colin E. Flora December 6, 2013 at 9:49 am

As a minor supplement to number five, at least one state – Indiana – flatly bans the citation of unpublished decisions to an Indiana court.

Ind. Appellate Rule 65(D): Unless later designated for publication, a not-for-publication memorandum decision shall not be regarded as precedent and shall not be cited to any court except by the parties to the case to establish res judicata, collateral estoppel, or law of the case.

The full boundaries of this rule have not been fully explored in Indiana case law. It has been used by at least one appellate panel to reject consideration of an unreported New York case. It has also been used by the 7th Circuit in deciding Indiana case law to reject any consideration of an Indiana unpublished decision.

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Justine Moore December 4, 2013 at 1:06 pm

Great points, and I’m so glad to see that you mentioned number four. I think a lot of people, (especially those that are new to law), forget about how this is such an easy way to make sure that you have the judge on your side. If you can manage to get cases where you already know that you’re defending a favorable position, why would you pass that up?

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