Developing legal theory in routine briefs

Conventional wisdom holds that only difficult or esoteric cases merit briefs which formally develop the law. The routine case, on this view, affords at most the opportunity to adjust the law to facts. Contrary to the conventional wisdom, routine briefs, even when the issues are procedural, often become more persuasive by arguing for original legal conclusions that address the dispute's essence. Lawyers hesitate to develop the law formally in routine cases because they anticipate that the court may reject the original legal analysis and imperil an otherwise solid case, but their objection overstates the difficulties in predicting judicial acceptance of the brief-writer's insights.

Legal insights are apt to clarify a routine procedural case when the facts relevant to the appeal are unusual, causing the relevant decisional law's underelaboration; a routine case can present unusual procedural facts when procedural posture makes appeal unlikely. In the following example of small-scale formal-law development, the summary judgment appealed was unopposed below, and a party shows unusual practical irrationality when it abstains below despite caring enough to appeal. Because of the dearth of case law on unopposed summary-judgment motions, no crisp holdings address what the appellant can argue after failing to file an opposition. I briefed my distinction between attack and rebuttal to arrive at the governing principles:

A defendant's prima facie case, when unopposed, can be attacked but not rebutted on appeal. Rebutting the prima facie case means asserting contrary facts; attacking the prima facie case means undermining the technical adequacy of the declarations, the substantive relevance of their content, or the sufficiency of the undisputed facts.

A distinction clearer than the unelaborated case law provides cleanly applies to the facts:

G argues that the "credibility exception"—which prohibits challenges to undisputed facts based on whether the court should believe the witness's declaration—is invalid, and abrogating the credibility exception, G says, would undermine the declarations supporting summary judgment, since alleged inconsistencies in the Ss' deposition and trial testimony would establish their evidence is incompetent. Disputing the undisputed facts with opposing evidence is rebuttal, not attack. Even without the credibility exception's prohibition barring G from creating disputed facts from mere credibility challenges, G would not have attacked Ss' prima facie case; he would merely have tried to rebut it.