TMH (Too Much History), a Form of TMI: Advice for Law Students and Young Lawyers

|The Volokh Conspiracy |

When explaining the legal rule in a brief, it's often tempting for law students and lawyers to give a good deal of historical background, something like this:

In 1964, in New York Times v. Sullivan, the Court held that "actual malice" had to be shown in libel lawsuits by public officials. Then, in Gertz v. Robert Welch, it held that it also had to be shown in libel lawsuits by private figures seeking presumed and punitive damages. Then, in Dun & Bradstreet v. Greenmoss Builders, the Court limited that rule to speech on matters of public concern. Therefore, in this case, where the speech is on matters of private concern, plaintiff can recover presumed and punitive damages based on a showing of mere negligence. Dun & Bradstreet; [also citing a state law case].

One should generally resist this temptation. Judges are busy people, whose main goal is to figure out the law that is currently applicable to these facts, and then to apply it. The history is sometimes relevant to understanding current law, but often it's not. Give no more history than necessary to show the current law; and that's often zero history, especially if there's a solid binding precedent you can quote for the current rule.

My sense is that such TMH often stems from what I call the "data dump" impulse: You've done a lot of research, learned a lot (including the history of how the law developed), and now you feel like putting it all down on paper. That's fine—but once you write it down, go back over it in your editing passes, and delete everything that's not really necessary to proving and applying the current rule.

Of course, sometimes there's Not Enough History; sometimes understanding how the law developed helps explain what some ambiguous term means, and how it applies in this case. (Perhaps, for instance, you might think that the judge could be distracted by the Gertz principle, which he might already know; if so, you might note that Dun & Bradstreet limited Gertz to speech on matters of public concern.)

But even then, I suggest stating the current rule at the outset, which may help you see just what history you need to include to supplement the current precedent. And in my experience, TMH is much more common in law students' work than Not Enough History.

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  1. Is there a typo in that brief excerpt? Otherwise, didn’t the Plaintiff’s counsel demonstrate quite pithily why Plaintiff should lose on the issue of standard of proof?

    1. Whoops, sorry, fixed — thanks!

      1. That excerpt points up another common instance of sub-optimal legal drafting. Rather than stating what the applicable legal standard is and explaining why his facts fit within that standard, he says what the rule is not, then discusses additional exceptions and limitations, and then tries to draw a conclusion. He also doesn’t mention whether the plaintiff is a public or private figure, or clarify why that is an irrelevant distinction in this instance.

  2. I was thinking about a related question recently: Why do American judges give so much less detail about a precedent when they cite it? In US judgments you typically simply read “the law is X, (A v. B, holding X)”.

    In the UK, the judge will generally give each precedent a paragraph or so, explaining the fact pattern in a sentence or two. The major precedents might get much more than that. For example, in this week’s Unwired Planet judgment of the UK Supreme Court, a massive case in my day job:

    73. We were referred to Apple Inc v Qualcomm Inc, Case No 3:17-cv-00108-GPC-MDD, which is a judgment by District Judge Curiel in the US District Court, Southern District of California given on 7 September 2017, which the Court of Appeal discussed in paras 67 and 68 of its judgment. In this case Apple was the implementer and Qualcomm the SEP owner. Apple challenged Qualcomm’s patents in eleven lawsuits in several jurisdictions on the grounds of invalidity, noninfringement and breaches of foreign competition law. Apple’s claim in the US proceedings included assertions of breach of contract and challenges to Qualcomm’s US patents on the ground of invalidity or non-infringement and also on grounds of anti-trust/competition law. In a counterclaim Qualcomm sought a declaration that it had complied with its irrevocable undertaking given pursuant to ETSI’s IPR Policy and asked the court to hold that particular offers were FRAND or in the alternative to determine worldwide FRAND royalty rates. Judge Curiel refused Qualcomm’s application for an anti-suit injunction on grounds which included that the determination of the global FRAND issue would not dispose of Apple’s foreign claims, which challenged the foreign patents. The judge did not decide whether he had authority to adjudicate upon Qualcomm’s claim for a worldwide FRAND determination. His decision therefore is not inconsistent with Birss J’s judgment

    The British approach strikes me as much better, because it does more justice to how context-specific these precedents are, and gives less scope for “lying by citation”. Show your homework…

    1. A good idea when necessary.

      An example I’m running into currently on a tenant mold injury case: When is coverage under a liability policy triggered? With the first “sub-clinical insults” to the body (otherwise known as “injury in fact”), or when symptoms appear? My adversary trotted out the “injury in fact” rule of American Home Products v. Liberty Mut. Ins. Co., 748 F.2d 760 (2nd Cir. 1984), which is now the standard rule applied when trigger of coverage is an issue. But someone giving a blow-by-blow of the arguments before that court, and the court’s rationale, would realize that it only meant to apply to sophisticated insureds like drug companies who have to do years of testing before their product is approved for sale; they are intimately familiar with a drug’s mechanism of action and side-effects, and would apply their knowledge as to when injury occurs for the purpose of the liability policies they purchase. By contrast, landlords are not expected to be familiar with the etiology of mold injuries.

      1. IANALNDIWTBO, but I know a *lot* about mold, and everything I heard was that it was the same sort of liability as asbestos. And there’s been a *lot* of litigation on that — IANAL but what do those cases say? (I seem to remember suits 40 years later when the cancers arrived.)

        ” landlords are not expected to be familiar with the etiology of mold injuries.”

        Nor do they have a right to subject their tenants to medical exams, do they?)

        Are you dealing with Aspergillus? That stuff, while rare, is nasty.
        (Most Black Mold is Stachybotrys.)

        1. Oh, and to further muddy the waters, it’s not when Aspergillus enters your lungs, but when it starts growing there. It’s entirely possible to breathe it right back out again without harm — same thing with Anthrax.

        2. Yes, it’s aspergillus.

          I haven’t looked at the asbestos cases in a while, but I recall they used the injury in fact rule also . . . arguably it should not have been, until the 1960’s when manufacturers learned of the hazards and the federal government started making them test it for safety.

          1. The question I would ask is how was Joe Landlord supposed to have known it was Aspergillus and not the much more common Stachybotrys? Even if the did an expensive lab test, he almost certainly would pick up Stachybotrys spores too, and might never even have seen the Aspergillus.

            I used to warn people that it COULD BE Aspergillis, but I didn’t know it was, and I tried to make that clear. And this was the annual Sect 8 Inspection that HUD doesn’t even require anymore.

  3. The quoted passage is quite pithy. Too often I would see a whole paragraph on Sullivan, a whole paragraph on Gertz before finally getting to Dun & Bradstreet.

    As for why new lawyers do TMH, it’s because:

    1. A leftover habit from law school exams, where piling on unnecessary information is rewarded.
    2. They don’t want to be accused by the supervising partner of being lazy or ignorant. (A guy I used to work for, if I just cited Dun & Bradstreet, would assume that I didn’t know about Sullivan or Gertz.)

    1. On 2, there’s also a feeling that some lawyers have that briefs have to cite all of the court of last resort decisions, even if they aren’t relevant.

      I remember once writing the first draft of a brief on the issue of whether admissions made in interrogatories were binding on a party in a summary judgment proceeding. In California, there’s a number of intermediate appellate decisions that hold that they are. There was also a somewhat famous California Supreme Court case, D’Amico v. Board of Medical Examiners, that involves Requests for Admissions. It’s not relevant to the interrogatory issue, because unlike with interrogatories, there actually is a statute that makes RFA responses binding. So it’s totally irrelevant to the issue of whether interrogatory responses are binding, as there’s no statute with interrogatories.

      But you couldn’t tell this to the senior lawyers on both sides. Not only my side’s brief end up extensively discussing D’Amico, but the other side’s briefs also contained extensive discussion of this irrelevant case, solely because it was a California Supreme Court case. It didn’t matter that it had no relevance and there were actually relevant cases from the intermediate courts that deserved more discussion.

      1. It was probably beneath their dignity to cite those shabby intermediate decisions . . . or maybe you were dealing with a stupid judge who they knew could be fooled with a bright shiny (highest court) object.

  4. One interesting corollary to all this is the situation in which historical context is critical to comprehension. I have encountered this in at least two scenarios:

    1. Where there is an old case that says X, where X is a statement seemingly relevant to your case, but where the old case is actually applying (perhaps without saying so expressly) a common-law or code pleading standard. It may look like a substantive rule, but it’s actually a procedural one. Those are very hard to tease out unless you understand how and when the pleading rules changed.

    2. Where statutory recodification has diminished comprehension. For example, Tennessee has a very long set of prejudgment-attachment statutes. And if you read through them, there are an unusual number of seemingly contradictory provisions. This is because the statutes were originally two entirely different schemes for different types of attachments. At some point they were recodified and jumbled together such that it is not facially obvious which statute goes with which mechanism.

  5. Very early in my career, I actually wrote the briefs in a Supreme Court case, which is an opportunity very few 26 year olds get to do. We had one lawyer on the legal team who had done some Supreme Court practice in the past.

    I sent over a draft that had a bunch of this sort of stuff, and it came back with a note from the experienced lawyer. “They are the Supreme Court. They know everything they have already ruled. You don’t need to tell them again.”

    1. You were a lucky guy. Tell me now that you’re experienced yourself — if you remember — were the finalized briefs good quality?

      I hardly ever get into U.S. Supreme Court jurisprudence in my line of work. Early in my career I worked on a water heater scald case where plaintiff invoked the Consumer Product Safety Act, a subsection of which seemed to dictate the kind of evidence needed to prove a case. But Congress can’t tell a state court how to apply rules of evidence. I realized that a law secretary in a dingy Bronx courtroom hearing arguments on calendar #66 wasn’t going to be jolted into declaring an act of Congress unconstitutional. So I didn’t make the argument.

      But I do often use this wonderful sentence from Interstate Circuit v. United States, 306 U.S. 208, 226 (1939): “The production of weak evidence when strong is available can lead only to the conclusion that the strong would have been adverse.”

  6. As George Santayana said, those who forget their history are doomed to be sent to the Alaska Military School.

    1. During Black Fly season…. 🙂

    2. Oates Military Academy.

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