Saturday, December 5, 2009

The curse of excessive citation

Brief-writers' faulty citation practice betrays their failure to subordinate the entire brief to persuasion. Many legal propositions asserted will be truisms or otherwise uncontested, as a 19th-century California Supreme Court recognized when it wrote, "No citation of authorities is required to show that a will is to be construed according to the intention of the testator." (See In re Estate of Stewart (1887) 74 Cal. 98.) The introduction should surprise most brief writers, ruled by today's norm to cite wherever possible.

Brief writers mimic judicial opinions by citing comprehensively; but judges understand that briefs and opinions serve different purposes, and judges aren't pleased with brief writers. In one judge's account, "A lawyer should include as few [citations] as practical…" A study of appellate judges revealed they believed that lawyers should restrict presentations of authority to cases useful to the judges, a standard they claimed lawyers "by any measure" failed to meet. Judge Ruggero J. Aldisert recommended that brief writers "Use authorities sparingly and only to the extent necessary to support a well-thought-out theory of your case." (All quotes from B. Garner, The Winning Brief (1999) at p. 131.) Judges aren't experts on their own persuasion, but here, the judges advocate citing cases only to prove points in contention for good reason: the practice avoids miscue by informing the court only of what's relevant.

Even if lawyers weren't often confused about the distinct properties of a brief compared to a judicial opinion, the amount of time lawyers spend reading opinions would distort their perceptions. When a brief writer looks at a legal proposition unaccompanied by citation, it looks unfinished, but the writer should suppress this misperception.

Lawyers are also subject to the much-studied cognitive illusion of overestimating the probability of conjunctive statements. (See A table of authorities with thirty-five entries proclaims that the lawyer's argument succeeds only if he correctly applied that many legal propositions. A table of authorities containing seven authorities suggests that 20% as many tests establish the argument's soundness. Assuming the writer provided authority for each contention, the brief with seven authorities is logically more secure, although many experimental subjects naively surmise that satisfying 35 conjoined claims is easier than satisfying seven. The conjunction fallacy encourages more citations, but an uncluttered brief with a compact table of authorities better persuades.

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