The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Using Precedents in Briefs
Some tips for students; they may seem obvious, but in my experience they have needed some stressing.
[1.] When possible, quote instead of paraphrasing. Say, for instance, that you want to argue that the obscenity exception doesn't cover ordinary vulgarities (even ones that are sometimes labeled "obscenities" in ordinary language). Cohen v. California (the "Fuck the Draft" case) has some great language:
This is not, for example, an obscenity case. Whatever else may be necessary to give rise to the States' broader power to prohibit obscene expression, such expression must be, in some significant way, erotic. It cannot plausibly be maintained that this vulgar allusion to the Selective Service System would conjure up such psychic stimulation in anyone likely to be confronted with Cohen's crudely defaced jacket.
So quote it directly, e.g.,
To be "obscene," "expression must be in some significant way, erotic"; mere "vulgar" words do not qualify. Cohen v. California, 403 U.S. 15, 20 (1971).
A paraphrase, such as
The obscenity exception only covers erotic material, and not just vulgarities.
is less effective; quotations have a verisimilitude and thus a persuasive force (despite readers' recognition that quotations are sometimes out of context) that mere paraphrases don't have.
Of course, I say "when possible"; sometimes, there isn't a really good quote in the original, even though the case really is good for you. And of course quotations of legal holdings also are often not enough; you often need to also analogize the facts of the precedent to yours (for instance, in a few sentences following the Cohen quote and citation). But always look for the good quotations.
Much the same applies to statutes, but even more so.
[2.] Generally speaking, put good quotes in the text; don't bury them in a parenthetical:
To be "obscene," "expression must be in some significant way, erotic"; mere "vulgar" words do not qualify. Cohen v. California, 403 U.S. 15, 20 (1971).
is better than
See Cohen v. California, 403 U.S. 15, 20 (1971) (to be "obscene," "expression must be in some significant way, erotic"; mere "vulgar" words do not qualify).
and much better than the redundant
The obscenity exception only covers erotic material, and not just vulgarities. See Cohen v. California, 403 U.S. 15, 20 (1971) (to be "obscene," "expression must be in some significant way, erotic"; mere "vulgar" words do not qualify).
Again, this is "generally speaking"; for instance, parentheticals may make sense when you've already given a good quote in the text, and are citing some cases to follow up. But try to keep the best material out of the parentheses.
[3.] Of course, don't bury good quotes even further, in the footnotes. For more on footnotes, see here. And remember: footnotes are the Siberia of your brief.
[4.] This is a closer call, but I suggest that you frame your quotes as legal facts, e.g.,
To be "obscene," "expression must be in some significant way, erotic"; mere "vulgar" words do not qualify. Cohen v. California, 403 U.S. 15, 20 (1971).
rather than as statements of what a court had said, e.g.,
The Supreme Court has held that, to be "obscene," "expression must be in some significant way, erotic"; mere "vulgar" words do not qualify. Cohen v. California, 403 U.S. 15, 20 (1971).
Generally speaking, I think this yields an argument that flows more smoothly and thus persuasively.
Philosophers might tell you that the second approach is the more accurate: You're not speaking about what "to be obscene" means as a fact, they might argue, but rather simply about what some authoritative body has said. But I think it's both fair and helpful in briefs to take advantage of the legal fiction that "the law" exists out there, and you're just reporting on it.
The argument for the "The Supreme Court has held …" locution is that it immediately signals the authority for the proposition, and I see that point. But I think it's usually better to just make your legal assertion and then have the citation indicate the weight of authority (which surely won't be lost on the judge reading your brief).
[5.] While quoting is important, don't overquote. The precedent (or statute or other authority) will often have material that's irrelevant to your case; generally speaking, you should edit that out—so long as you can candidly do so—and focus just on the material that's on point. Thus, I think that,
To be "obscene," "expression must be in some significant way, erotic"; mere "vulgar" words do not qualify. Cohen v. California, 403 U.S. 15, 20 (1971).
is better than the longer quote:
"Whatever else may be necessary to give rise to the States' broader power to prohibit obscene expression, such expression must be, in some significant way, erotic. It cannot plausibly be maintained that[, for instance, a] vulgar allusion to the Selective Service System would conjure up such psychic stimulation in anyone likely to be confronted with Cohen's crudely defaced jacket." Cohen v. California, 403 U.S. 15, 20 (1971).
Of course, omissions, bracketed changes, or excerpts of clauses rather than sentences or paragraphs can create some extra suspicion that you're quoting out of context. But on balance it's usually better to run that risk rather than distract the reader with irrelevant or even just tangential material from the original.
