Tuesday, October 23, 2012

Using Cases as Illustrations

"[T]he fact is that in his brief, the lawyer seems oppressed with the feeling that his reasoning must be the servant of his authorities, with the result that his argument often becomes heavy from forced subordination, when it might be lightened by using the cases merely to illustrate, like pictures in a book." - Howard C. Westwood

Appellate advocacy is not merely a contest of "I cited the most relevant cases; therefore, I win."   Let the case law take a back seat to the argument.  String cites - especially for indisputable propositions like the standard for summary judgment - are not a substitute for thoughtful legal analysis.  Larding up the brief with authorities convey the impression that the lawyer has nothing original to say, thereby rendering him unable to assist the court in deciding the case.  Write a story; not a treatise.  

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