Mark Twain had a proclivity for swearing—at the slightest provocation or frustration, he would let forth a stream of profanities that would singe the ears. His long-suffering wife, Livy, thought she would try to break his swearing habit by showing him how unbecoming such outbursts were. The next time she dropped or spilled something, she let loose a burst of profanity that she had carefully memorized from having all too often heard those words coming from her husband’s mouth.
Twain did not skip a beat. He looked calmly at his wife and said, “Dear, you have the words, but you lack the melody.”
What can the lawyer sitting down to write a motion or brief learn from this story? Simply this: It is not enough to cite cases in a pro forma, “business as usual” manner, as all too many lawyers do. You have to do more than sprinkle cases through your motions or briefs like salt. You have to make every case you cite count. The cases you cite must get your point across in a manner that will persuade the judge to rule in your favor. Citing cases in the usual, dull manner will not get your point across. Put differently, it is not enough to say all the right words—you have to get the melody right as well, as Mrs. Twain learned.
This article focuses on getting the “melody” of case citation right.
Finding the Melody
The first question you should always ask yourself is “Why am I citing this particular case?” If you cannot answer this question, do not cite that case.
There are several basic rules you should follow in deciding whether you want to cite a case and how you should cite it.
Do not waste the court’s time with lengthy citations discussing obvious legal points. The court does not need to be told, at great length, what the standard is for granting summary judgment. Nor does it need extensive citation for the proposition that to state a Labor Law §240(1) claim there must be an elevation-related accident. Nor does it need a long list of cases that hold that the courts favor dispositions on the merits rather than defaults. Nor does it need cases that stand for the proposition that discovery should be liberally granted. If you need to address boilerplate issues such as these, state the rule as briefly as possible and move on to the real issues.
Pay attention to the origin of the case you want to cite. You are not in law school any more where you could cite, with equal force, a U.S. Supreme Court decision and a Nassau County District Court decision. This is not effective in the real world in which we practice. Courts like to see citations to their own cases or to cases decided by the appellate court that will review their decisions. This means that if you are appearing in Supreme Court, New York County, or in the Appellate Division, First Department, you should be citing First Department and Court of Appeals cases. If you are appearing in Supreme Court, Queens County, or in the Appellate Division, Second Department, you should be citing Second Department and Court of Appeals cases.
This does not mean that you should never deviate from this rule. If there is a case that is remarkably similar to the facts of your case from another judicial department, by all means cite it. But also add a case or two from the judicial department in which you are submitting the papers. If you are dealing with a developing issue in which the case law is still sparse, by all means cite whatever cases there are that address this issue.
Rarely, if ever, should you cite trial court decisions because they are not binding on either courts that are on the same level or the level above. Nor should you cite unpublished decisions, as they are not binding on any court.1
All decisions are not created equal. Avoid citing one- and two-paragraph decisions that do little more than state a legal principle without any factual discussion. Citing these cases will not persuade a court of anything. In the vast majority of cases, the question is not “What is the law?” but “How does the well-settled law apply to this particular set of facts?” What will persuade a court is citation to a case in which, on facts similar to the facts of your case, the court came to the conclusion that you are urging. You will be far more persuasive by citing fewer cases and focusing on cases in which the facts are similar to the facts of your case, than by offering up a string cite of a dozen cases that merely state the bare legal rule.
Avoid string cites. String cites are roadblocks that stop readers dead in their tracks or cause readers to skip over the whole tangle of citations and miss the point you are trying to make. Instead of string cites, cite cases that are legally and factually similar to the facts of your case and discuss the facts of the case you cite and compare them to the facts of your case. This is what persuades judges.
If you use a string cite, make the most of it by including parentheticals to drive home the point you are trying to make.
Use pin-point or jump cites. Whether in a string cite or not, when you quote or paraphrase from a case, you should include the page number containing the language you are quoting or paraphrasing. Doing this is a way of giving the judge confidence that the case actually says what you say it says because you are making it easier for the reader to check your citation. And if the judge decides to look at the case you have cited, he or she will appreciate being able to quickly find the language on which you are relying.
When citing a series of cases, cite them in court and date order. The cases should be cited in order of highest court to lowest court and, within each group, in date order. This means that all federal cases are cited before all state cases and that all appellate court cases are cited before all trial court cases. Within each category, cite the cases in date order from newest case to oldest case.
Avoid block quotes from cases. Lawyers love block quotes, but often misuse them by allowing them to run on for too long or to include irrelevant and extraneous information. When you use lengthy block quotes, you are giving up the opportunity to be persuasive on your own terms and to make your own argument—you are telling the reader, “Here, read the case for yourself.”
Long block quotes are also eye-stopping roadblocks because they often contain citations and facts not relevant to your case. Your argument will be far more effective if you describe the cited case in your own words and then drive your point home with a carefully-selected brief quotation of the directly relevant language.
One way of keeping block quotes short is to omit internal citations as well as factual references not relevant to your case. But you must do this honestly—use ellipses or brackets to indicate omissions and be careful not to omit something that changes the meaning of the language you are quoting.
Very carefully read the cases you want to cite. Many lawyers skim the cases they want to cite and pluck out the language they find useful and leave it at that, often ignoring that the case comes down against their position or contains language hurting them on another issue. Before citing a case, read it all the way through and make sure that you understand all of its implications.
Even if a case states the law favorably to your position, you are probably better off not citing it if, on the unique facts of that case, it comes down against your position or raises a tangential issue that may confuse the court or which you would rather not call to your adversary’s attention. If you cite such cases, you will be giving your adversaries arguments they can use against you. Find a case that states the law favorably and is decided in your favor. If you cannot find such a case, preempt your adversary by discussing the negative holding and explaining why that holding should not apply in your case.
Very carefully read the cases your adversary has cited. You will be surprised how often your adversary pulls a few words or lines out of a case that was actually decided in your favor. Do not be shy about pointing out to the court that the cases your adversary has cited actually support your position.
Cite cases honestly. This should go without saying, but on at least one occasion, the Appellate Division, First Department, found it necessary to state this rule.2 When you fudge the facts or the case law, you are not advancing your position, you are destroying your credibility and you are handing your adversary a stick with which to beat you. One of the most effective techniques in writing opposing and reply papers is to cite, chapter and verse, your adversary’s misstatements of the facts and mis-citations of the cases. More important, judges have long memories and papers that are less than forthright may very well come back to haunt you in a future case.
Pay attention to citation style. Too many lawyers are careless about citation style, which should be one of the easiest aspects of writing a brief or memorandum. Sloppy, careless or inconsistent citation style lessens the reader’s confidence in your document. The correct way to cite New York state cases is as follows—note the use of the pin-point or jump cites:
Chianese v. Meier, 98 N.Y.2d 270, 277, 746 N.Y.S.2d 657, 660 (2002).
Roseboro v. New York City Transit Authority, 10 A.D.3d 524, 526, 782 N.Y.S.2d 23, 25 (1st Dept. 2004).
The official reporter is given first, the unofficial, second; citing the unofficial reporter is optional, though many lawyers do so out of habit.3 Never cite to the national reporters—N.W.2d or N.E.3d and the like—unless you are submitting papers to a federal or out-of-state court that does not keep official reporters in its library. When citing an appellate division case, the judicial department is listed before the year. Where the New York Court of Appeals has denied leave to appeal, it is neither necessary nor proper to include that in the citation.4
Accuracy counts. Invariably, when you cite a case or use a quotation from a case, there will be a glitch. The numbers in a citation may get transposed or you may drop or misspell a word from a quotation or case name. Once you have a clean working draft, use Westlaw or Lexis to cite-check your papers. These programs (a) check your case citations for accuracy; (b) warn you if your case has been overruled; (c) check the spelling of the case names against the spelling in the reporters; and (d) check the quotation as it appears in your papers against the quotation as it appears in the case. Cite-checking a document takes a minute or two and is well worth the effort to avoid inaccuracies and embarrassment.
These rules are simple and may seem self-evident. Unfortunately, too few people follow these basic rules and, by failing to do so, miss the opportunity to get the “melody” of case-citation right and gain the extra advantage that may help put their argument over the top.
Harry Steinberg is a member of Lester Schwab Katz & Dwyer, where his practice focuses on major motions and appeals in personal injury, negligence, products liability, construction accident and insurance cases. He can be reached at email@example.com.
1. Eaton v. Chahal, 146 Misc.2d 977, 983 (Sup. Ct. Rensselaer Co. 1990) (“Such decisions, although entitled to respectful consideration, are not binding precedent upon this court”).
2. Matter of Cicio, 98 A.D.2d 38, 40, 469 N.Y.S.2d 467, 469 (1st Dept. 1983) (“The function of an appellate brief is to assist, not mislead, the court”).
3. CPLR 5529(e) (“New York decisions shall be cited from the official reports, if any”).
4. Matter of Conservative Party of the State of New York v. New York State Board of Elections, 88 N.Y.2d 998, 998, 648 N.Y.S.2d 868, 868 (1996) (“the Court of Appeals takes the opportunity to restate the rule that denial of a motion for leave to appeal is not equivalent to an affirmance and has no precedential value”).