Persuasive Authority Forum

[Bruce W. 1991]

Does anyone know to cite persuasive authority in a memo? My professor wants me to add unpublished cases, but I'm not sure where or how to do it.

Is it the same as other authority? For example, just state it in RE and then apply it in RA?

Thanks in advance.

[iamgeorgebush]

I don't know what "RE" and "RA" stand for (real estate and research assistant?), but as far as I know, you cite persuasive authority the same way you cite binding authority. So if I'm in the 11th Circuit and want to cite 9th Circuit persuasive authority, I'd just cite the 9th Circuit case just like I would the 9th Circuit case. So for example:

Courts apply strict scrutiny to classifications based on race. Jack v. Jill, 123 F.3d 456, 462 (9th Cir. 2014).

But obviously don't represent that the persuasive authority is binding when it isn't. For example, don't do this if you're in the 11th Circuit:

The 11th Circuit has held that strict scrutiny applies to classifications based on race. Jack v. Jill, 123 F.3d 456, 462 (9th Cir. 2014).

The same would apply for unpublished cases. For example, you could do:

Courts apply strict scrutiny to classifications based on race. Jack v. Jill, No. 53-cv-296, 2014 WL 87983, at *5 (N.D. Cal. 2014).

[lacrossebrother]

I believe that RE and RA are for rule explanation and rule analysis. OP, try to remember that there are 500 different legal writing books that use different acronyms. The one that everyone knows is IRAC, even though that has hundreds of derivatives itself.

The way I see it, non-binding authority can be used in two scenarios (with a few sub-scenarios each).

The first is where you have a case within your jurisdiction that is on-point but unpublished. What you will first do is read that case and see if it cites anything binding within the jurisdiction for the same proposition and that is in fact published. Use that case instead. If it cites a few cases but then makes a leap, you will however want to cite this unpublished case for your proposition, and then in a parenthetical, add "citing [binding case]." Depending on how big the leap is, you can expand the parenthetical to succinctly summarize the logical connection. Alternatively, you may find that your unpublished case citing your intended proposition is dealing with a matter of first impression in your jurisdiction, but cites to a case outside your jurisdiction. Here, you will again cite the unpublished case but then add a parenthetical that says "citing [other published case, outside jx] (interpreting [same federal law])".

The second scenario, which is not all that much different, is just where you have a pretty good published case, that is like 90% on point, and you just want to say there's another case that supports the same idea, perhaps with even closer facts. Here, just cite the published case first, and then include the unpublished case as more support.

Of course, in all of this, your target audience is greatly important. Assuming that you're using "memo" to mean an office memo, not something sent to a judge or opposing counsel, you're going to want to explain that you couldn't find anything directly on point in your jurisdiction. Then you can go ahead and reference the unpublished case.

In terms of keeping track of this case in "RE/RA" --this really depends on what type of "persuasive authority' you have. If you have binding law in your jurisdiction, but are also aware of circuit split, then you'll obviously want to explain the difference in law, how you think the analysis shifts based on which rule is applied, and whether you think there's any chance of the other rule being used.

[Bruce W. 1991]

I believe that RE and RA are for rule explanation and rule analysis. OP, try to remember that there are 500 different legal writing books that use different acronyms. The one that everyone knows is IRAC, even though that has hundreds of derivatives itself.

The way I see it, non-binding authority can be used in two scenarios (with a few sub-scenarios each).

The first is where you have a case within your jurisdiction that is on-point but unpublished. What you will first do is read that case and see if it cites anything binding within the jurisdiction for the same proposition and that is in fact published. Use that case instead. If it cites a few cases but then makes a leap, you will however want to cite this unpublished case for your proposition, and then in a parenthetical, add "citing [binding case]." Depending on how big the leap is, you can expand the parenthetical to succinctly summarize the logical connection. Alternatively, you may find that your unpublished case citing your intended proposition is dealing with a matter of first impression in your jurisdiction, but cites to a case outside your jurisdiction. Here, you will again cite the unpublished case but then add a parenthetical that says "citing [other published case, outside jx] (interpreting [same federal law])".

The second scenario, which is not all that much different, is just where you have a pretty good published case, that is like 90% on point, and you just want to say there's another case that supports the same idea, perhaps with even closer facts. Here, just cite the published case first, and then include the unpublished case as more support.

Of course, in all of this, your target audience is greatly important. Assuming that you're using "memo" to mean an office memo, not something sent to a judge or opposing counsel, you're going to want to explain that you couldn't find anything directly on point in your jurisdiction. Then you can go ahead and reference the unpublished case.

In terms of keeping track of this case in "RE/RA" --this really depends on what type of "persuasive authority' you have. If you have binding law in your jurisdiction, but are also aware of circuit split, then you'll obviously want to explain the difference in law, how you think the analysis shifts based on which rule is applied, and whether you think there's any chance of the other rule being used.

Thanks this makes sense. We use CREAC.

So if I cite an unpublished case or a case from outside my jurisdiction as lending support to binding authority, would I have to apply it in Rule Application similar to the way I apply binding authority?

My professor is asking for persuasive authority (unpublished or outside jurisdiction), but I am struggling with the page limit. I want to cite the persuasive authority then explain the holding in a parenthetical, but I'm not sure if I need to apply in in Rule Application.

It looks like I do...unfortunate

[lacrossebrother]

no you definitely don't need to explain the facts of every case you cite, especially those cited parenthetically. What you're trying to do is first say, "this is definitely what the law is." Then you want to give some highlights of how that law has been applied to facts. If the case is light on facts, or substantially the same as another case, it's fine to not reference it.

The binding/persuasive divide is largely a preliminary question about whether to even mention the case. Once you've brought it in, you should still determine how much time to spend with it.

[Bruce W. 1991]

no you definitely don't need to explain the facts of every case you cite, especially those cited parenthetically. What you're trying to do is first say, "this is definitely what the law is." Then you want to give some highlights of how that law has been applied to facts. If the case is light on facts, or substantially the same as another case, it's fine to not reference it.

The binding/persuasive divide is largely a preliminary question about whether to even mention the case. Once you've brought it in, you should still determine how much time to spend with it.

Just to confirm, if the case is persuasive and I deal with it using a parenthetical citation in Rule Explanation, it is ok to no have to apply it in Rule Application? For example if my memo is based on 11th circuit cases:


Rule Explanation:
Courts apply strict scrutiny to classifications based on race. Bill v. Ted, 123 F.3d 456, 462 (11th Cir. 2014); see also Jack v. Jill, 123 F.3d 456, 462 (9th Cir. 2014) (holding classifications based on race was necessary to prevent white folks from being mean).

Rule Application:
Similar to Bill, where Bill was white and mean, our Client is also white and mean.

[lacrossebrother]

Maybe you should ask someone more in tune with the lwrap grading system. Right now though you need to first explain the facts of Bill v. Ted. And why are you citing Bill and Ted for the proposition that you client is white and mean?

[malleus discentium]

Why is your professor having you include persuasive authority, and unpublished opinions in particular? It seems peculiar to want persuasive authority for no reason.

[Bruce W. 1991]

Why is your professor having you include persuasive authority, and unpublished opinions in particular? It seems peculiar to want persuasive authority for no reason.

My professor is crazy. Every single other class has been told not to include unpublished cases. I don't know if anyone else in my class got that comment.

Strange, right? The page limit is killing me.

[Bruce W. 1991]

Why is your professor having you include persuasive authority, and unpublished opinions in particular? It seems peculiar to want persuasive authority for no reason.

My professor is crazy. Every single other class has been told not to include unpublished cases. I don't know if anyone else in my class got that comment.

Strange, right? The page limit is killing me.

Also she is "grading on the margin" since our class apparently has a lot of smart kids in it. So it's really coming down to ridiculous details.

[Bruce W. 1991]

Why is your professor having you include persuasive authority, and unpublished opinions in particular? It seems peculiar to want persuasive authority for no reason.

My professor is crazy. Every single other class has been told not to include unpublished cases. I don't know if anyone else in my class got that comment.

Strange, right? The page limit is killing me.

Also he/she is "grading on the margin" since our class apparently has a lot of smart kids in it. So it's really coming down to ridiculous details.

[lacrossebrother]

Don't let form override common sense. The purpose of these strict form rules is to give you the best structure for your memo. Always. Except when it doesn't.
You see what makes you analysis shitty right now, right? You cited a case. And then immediately said "similar to its facts, these are our facts." But we don't know what that case's facts are unless you tell us. And again, if you can get the whole point across with zero factual examples, then zero is the right number. Citing multiple cases for the same proposition can serve either one or two purposes: demonstrating that you haven't cited a rogue opinion (i.e. The law is definitely the way you say it is), and/or providing an applicable fact set. You need make sure your non-binding authority fits into at least one of these categories:--either it's the only way you can show you haven't cited a rogue case, or it's the most applicable facts.

[iamgeorgebush]

To reiterate what lacrossebro said, it is not necessary to recount the facts of every case you cite. In fact, doing so would be a mistake. But where you do recount those cases' facts, it is probably best to do so in the "R" section of "IRAC" (or "E" section of "CREAC," I suppose). So you might do something like:

Courts apply strict scrutiny to classifications based on race. Bill v. Ted, 123 F.3d 456, 462 (11th Cir. 2014). Thus, any race-based classification must be narrowly tailored to a compelling government interest. Id. For example, the Second Circuit found unconstitutional a statute forbidding all persons of color from using water fountains, see Jones v. New York, 232 F.3d 872, 888 (2d Cir. 2013) (holding statute violates Equal Protection Clause), while the Ninth Circuit found a requirement that white people refrain from shouting racial epithets on government property was narrowly tailored to the compelling government interest was preventing white folks from being mean, see Jack v. Jill, 123 F.3d 456, 462 (9th Cir. 2014) (holding statute did not violate Equal Protection Clause).

With the caveat that your prof may have particular predilections that vary from what I've described.

[JGMotorsport]

The thing is OP and judging by this thread every professor is different.

We do CREAC

R: some synthesized rule with the stat language then some additions to the rule by jurisdiction. May use cases from E may use cases that state the law clearly.

E: illustrate a few cases to be analyzed of pertinence

Thesis: the court will likely hold that Graham violated indecent exposure statutes because...
A: using cases in E and only facts from E make some arguments following some thesis. Like the perpetrator in [case from E] who ran about naked in the street our client stripped his clothes and pranced about the sidewalk. Unlike the perpetrator in [different case from E] who... (Client) did...

Then counter arguments

[BigZuck]

You sure you're allowed to seek outside help on your memo? We couldn't at my school.

If you're really struggling with the page limit then keep in mind that at least 10% of the words you have written are superfluous and could be cut out (and realistically, it's probably more like 30%). A lot of legal writing is pretty bad, especially when written by first semester 1Ls. A strange thing happens when you start learning to "think like a lawyer" and you start "writing like a lawyer" and just putting in all this weird legalese and making things much more complicated and borderline nonsensical than need be. You can probably go back through and cull a lot of stuff, make sentences shorter, put things into plain English, etc.

(I know that doesn't seem responsive to your question but if you just need space to plug in some crap that your LRW professor wants you to plug in for no reason then it should be pretty easy to cut stuff)

[Bruce W. 1991]

To reiterate what lacrossebro said, it is not necessary to recount the facts of every case you cite. In fact, doing so would be a mistake. But where you do recount those cases' facts, it is probably best to do so in the "R" section of "IRAC" (or "E" section of "CREAC," I suppose). So you might do something like:

Courts apply strict scrutiny to classifications based on race. Bill v. Ted, 123 F.3d 456, 462 (11th Cir. 2014). Thus, any race-based classification must be narrowly tailored to a compelling government interest. Id. For example, the Second Circuit found unconstitutional a statute forbidding all persons of color from using water fountains, see Jones v. New York, 232 F.3d 872, 888 (2d Cir. 2013) (holding statute violates Equal Protection Clause), while the Ninth Circuit found a requirement that white people refrain from shouting racial epithets on government property was narrowly tailored to the compelling government interest was preventing white folks from being mean, see Jack v. Jill, 123 F.3d 456, 462 (9th Cir. 2014) (holding statute did not violate Equal Protection Clause).

With the caveat that your prof may have particular predilections that vary from what I've described.

Yes thank you! This is what I was looking for.

I also like George Bush (more so than Gore or Kerry).

[Bruce W. 1991]

You sure you're allowed to seek outside help on your memo? We couldn't at my school.

I have no idea and absolutely don't care!

I spoke to my professor about grading and he said our class was particularly strong and the grading was being done based on minor shit. Then he went on to explain that the program director thinks the grades are too high and he said perhaps its because we're giving out too much information.

This is why I don't care. The point of LRW in my opinion is to teach us how to become lawyers. At my school its a year long course. We shouldn't be fighting over fucking commas. The majority of comments I get are minor stuff....because I really need busy work.

Also, whatever grade I get is not going to be equal to another student in another class. For example if I get a B+ it's not comparable to someone in another class who got an A- or an A. Our grade is essentially based on the professor and people in our class. If I was in another class I would be on track to get an A-/A instead of somewhere between a B+ and A-.

At least in our doctrinal classes it's more fair since we're being graded against our entire section by one professor.