Category Archives: Tables

Appellate Briefs – String Citations?

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The last two posts covered a brief’s Table of Authorities, including proper citation form and citing unpublished opinions in the South Carolina appellate courts. This post finishes up the Table of Authorities by condemning string citations.

Judges and legal writing gurus uniformly criticize string citations. In her treatise, for example, Chief Justice Toal advises that a brief need not be cluttered with long string citations for simple propositions. One citation will do. For more significant and contested rules, three of four citations may be necessary. Yet no more is needed unless one is presenting a nationwide survey. Jean H. Toal, et. al., Appellate Practice in South Carolina (2d Ed. 2002) at 225.

Justice Antonin Scalia agrees, In his and Bryan Garner’s book, Making the Case, the authors advise at pp. 125-126 to cite authorities sparingly  and liken string citations to showing off to an unappreciative audience.

Lastly, legal writing expert Steven D. Stark, in his book Writing to Win, notes at page 159 that his has yet to meet the judge who looks at the fifth case cited in a long string and exclaims, “I love that case! You win!”

Many other authorities likewise condemn string citations, but it would be too ironic to cite them.

Please note, however, that you need at least one citation to argue a point. The Court will likely hold that a point is abandoned if unsupported by any authority. As with other areas of the law, and with life, the Goldilocks approach is best.

Has anyone else seen briefs cite a half dozen or more cases on the standard for granting summary judgment? Please let me hear from you. You can reach me at www.attorneyroberthill.com.

 

Citing Unpublished Orders on Appeal

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The last post covered a brief’s Table of Authorities and proper citation form. This one addresses whether one may cite unpublished opinions.

The South Carolina rule prohibits citing unpublished orders except in proceedings in which they are directly involved. Rule 268(d)(2), SCACR. The Supreme Court and Court of Appeals reminds readers of this prohibition by placing a prominent warning on their unpublished opinions against citing the opinion except as provided in the rule.

But the Supreme Court is free to modify its rules. In one case,the Court cited its unpublished opinion in an unrelated case for its persuasiveness. Toth v. Square D Co., 298 S.C. 6, 10, 377 S.E.2d 584, 586-587 (1989).

A different rule may also apply to unpublished trial court orders. The Court of Appeals stated in dicta that a party may present trial-court orders to a trial judge as if they were memoranda of law. The trial judge may not expressly rely on such orders as authority, but may give them whatever persuasive effect that they may have. Higgins v. Medical University of South Carolina, 326 S.C. 592, 600, 486 S.E.2d 269, 273 (Ct.App. 1997).

The Supreme Court has also relied on unpublished state trial court orders from trial courts outside South Carolina. Cole v. Boy Scouts of America, 397 S.C. 247, 253 n. 2, 725 S.E.2d 476, 479 n. 2 (2012).

Federal courts addressed this by adopting Rule 32.1, FRAP. It provides that a court may not prohibit or restrict citing federal judicial opinions or other written dispositions — even if designated as “unpublished” or the like — if the disposition issued on or after January 1, 2007. The proposed rule was controversial, and the January 2007 cut-off date was an apparent compromise. See Anne Coyle, A Modest Reform:  The New Rule 32.1 Permitting Citation to Unpublished Opinions in the Federal Courts of Appeals, 72 Fordham L. Rev. 2471 (2004)(describing the competing policy arguments). The various federal circuits treat pre-2007 cases differently, with some continuing their blanket prohibition on citing pre-2007 unpublished opinions (a chart is available here).

Rule 32.1, FRAP, makes sense. A blanket prohibition on citing orders may deprive the Court of information that it could find helpful. And where is the harm? The Court, after all, remains free to give the unpublished opinions whatever weight, if any, that the court believes that the opinion deserves. Why should the South Carolina Supreme Court be able to rely on unpublished state trial court orders from Connecticut and New York, like it did in Cole, yet not allow attorneys to bring its own orders to its attention?

Has anyone else been frustrated by being unable to cite unpublished orders? Please let me hear from you. You may reach me at www.attorneyroberthill.com.

 

Citing Authorities in South Carolina

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After the Table of Contents, discussed in the last post, comes the Table of Cases. Rule 208(b)(1), SCACR. This is a misnomer in that Table is better described as a Table of Authorities because other authorities, such as statutes, must be listed too.

In listing the authority, Rule 268, SCACR, governs how to cite the South Carolina materials. For other authority, the rule recommends A Guide to South Carolina Legal Research and Citation, and the Bluebook, A Uniform System of Citation. But it allows using other citation publications too. Other publications that may be consulted include the Association of Legal Writing Directors’ competing citation manual. Professor Peter W. Martin of Cornell University has also published a free citation manual on-line.

All of these manuals stress that a citation must be complete. Completeness achieves several related goals:

  • tells the reader how to find the document
  • gives the reader alternative sources for the document, and
  • gives the reader enough information to decide if the reference is worth pursuing

Completeness further requires accuracy in identifying the court rendering the opinion. Under Rule 268, SCACR, for example, the primary difference between citing an opinion from the South Carolina Supreme Court and the South Carolina Court of Appeals is that “Ct.App.” is placed before the date in the parenthetical. John v. Doe, 123 S.C. 123, 456 S.E.2d 456 (2012) is a Supreme Court case. John v. Doe, 123 S.C. 123, 456 S.E.2d 456 (Ct.App. 2012) is a Court of Appeals case. By the way, these apparent links do not work because the citations are made up.

In a federal court case where state law was at issue, I was once able to make hay from opposing counsel omitting the “Ct.App.” when citing a South Carolina case. The omission  allowed me to argue that counsel misidentified the decision as binding Supreme Court precedent when it was, in fact, a non-binding intermediate appellate court decision.

Giving a case’s subsequent history is likewise crucial. A brief that I recently read neglected to mention that a case cited was overruled on another ground. Opposing counsel quickly added the subsequent history, thus gaining credibility with the Court.

Lastly, in Tip 78 of The Winning Brief, legal writing guru Bryan Garner recommends that one learn the correct abbreviation forms for common words in case names. Formal abbreviations may be expected by the reader, and they in any event give the Table of Authorities a cleaner appearance.

Has anyone else caught opposing counsel citing an overruled case? Please let us hear from you. You may reach me at www.attorneyroberthill.com.

 

 

Using a Table of Contents Persuasively

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In South Carolina (and other jurisdictions), appellate briefs begin with a Table of Contents. The Table’s obvious purpose is to tell the reader where to find the various parts of the brief. In that vein, headings may be used in the Statement of Facts, and repeated in the Table of Contents, to give sign posts through the story or narrative.

Argument headings can do more. They may be used to achieve the greater aim of persuading the reader why you should win.

The body of briefs must contain argument headings on each particular issue addressed. Rule 208(b)(1)(D). These headings may be included in the Table of Contents and, if well written, act as an effective point-by-point summary and outline of your views. The goal is to allow the judge to skim the Table of Contents, evaluate the brief’s logic and coherence, and understand why you believe that you should win. And accomplish this before turning another page.

Often, the Table of Contents is the last part of the brief that is written.The focus at that point may be on getting the page numbers right than on whether the argument headings show that the arguments are well summarized and organized.

by Antonin Scalia and Bryan A. Garner

by Antonin Scalia and Bryan A. Garner

How can one make the Table of Contents more helpful? Ross Guberman’s book, Point Made, uses examples from top appellate advocates to say that argument headings and subheadings should be complete sentences nested within each other. In Making Your Case, Justice Scalia and Bryan Gardner agree that argument headings are most effective if they are full sentences announcing not just the topic but your position on the topic.

Guberman further notes that top advocates love to use “because” in their argument headings. With this approach, the headings not only announce the topic and conclusion — the headings also summarize why the conclusion is correct.

Which heading do you find more persuasive?

  • Standard of Review
  • The standard of review is for any evidence to support the verdict.
  • The standard of review requires a new trial because no evidence supports the verdict.

Lastly, author Ruth Anne Robbins in her article, Painting with Print, notes that brief writers may use different fonts and type point sizes for headings stated in the Table of Contents than from the headings stated in the body of the brief.  Id. at pp. 128, 133. This allows brief writers the ability to retain the traditional outline form for the Table of Contents while applying better typography in the body of the brief.

Has anyone out there encountered a well written Table of Contents? Please let us hear from you. You can reach me at www.attorneyroberthill.com.