Choosing and Using Case Authority: Tips and Ethics for Litigators
By Sarah Hofstadter
Sarah Hofstadter is counsel with the California Appellate Law Group LLP, a 15-lawyer appellate boutique with offices in San Francisco and Los Angeles. Sarah spent more than a dozen years as a research and staff attorney on the California Courts of Appeal and the Ninth Circuit.
Under both California and federal appellate rules, legal arguments in briefs must be supported by citations to appropriate authority. (Fed. Rules App. Proc., rule 28(a)(8)(A); Cal. Rules of Court, rule 8.204(a)(1)(B).) And in trial courts, a memorandum of points and authorities or other written argument carries little weight if it cites no authorities.
In any court, when the relevant authority is case law, selecting the right cases to cite, and using them correctly and effectively, is not a simple endeavor. It requires the exercise of skill and judgment, and due concern for ethical considerations.