Don't File That Brief! The One Thing You Must Check Before Submitting

You stumble upon a fellow associate who had a disastrous motion hearing and a few drinks, in that order, now searching for his lost house key beneath a streetlamp. Helping your compatriot, you crawl the sidewalk with him until he mentions he heard it clink loudly as it dropped—a mile down the foggy road. So why is he looking here? Your inebriated colleague responds:

“Well, counselor, it’s much easier to see under this streetlight.”¹

But even sober attorneys follow the drunkard’s approach when it comes to legal research. Lawyers seek out bright landmark cases while the exceptionally relevant cases linger in the shadows, footnoted in treatises or buried sixteen pages deep in “Next” grade search results. Landmark cases are important but they won’t distinguish you from any other competent lawyer.

Much as the juiciest berries are impossible to find on a well-traveled path, finding the cases that set you apart from an average² litigator requires intelligent searching off the worn trail. While daunting with traditional tools, recently released technology makes it easy and well worth the rewards. (Blueberries as big as the end of your thumb…³)

You won’t find these cases by searching repeatedly around the landmark— since they may not directly cite it. That’s the difficulty of the traditional tools: a practice guide tells you about seminal cases, and then you squeeze your facts into the framework of those major cases and the related cases that cite to them, hoping your Darrow-esque wit convinces the court your cited authority is on point. Meanwhile, the truly on-point case goes unseen.

For example, say you’re defending against a frivolous claim and opposing counsel cites expressly overruled authority (benchslap whoops!) in violation of Rule 11. You may be tempted to delay seeking Rule 11 sanctions until after the court grants your MSJ. If you followed the traditional research approach and read the landmark case, Cooter v. Gell (cited about 2,000 times), and the cases that cite to it, you wouldn’t know that once the summary judgment motion is decided it will be too late to move for Rule 11 sanctions.

That’s because the controlling cases do not cite directly to Cooter v. Gell; rather, they cite to cases that in turn cite Cooter. In the Ninth Circuit, Barber v. Miller prohibits awarding sanctions after the summary judgment motion has been decided, but doesn’t cite to Cooter. Instead, it cites to Ridder v. City of Springfield, which in turn cites to Cooter. Other cases are even more remotely connected but may be especially pertinent to the fact pattern.

Second-degree connections like this require exhaustive digging in text-centered research software, but jump in your face when you apply data visualization technology. Delaying a Rule 11 motion until after judgment is a common mistake made even by experienced counsel, but a new lawyer with the right tools would find these cases before it was too late.

Legal research can seem overwhelming at times, and even dedicated associates who are willing to stay up all night can’t bill all those research hours on a ten-page reply brief without upsetting a client (or a partner). A marathon night of brute force case reading doesn’t qualify as an intelligent search. We wouldn’t want our friend stumbling aimlessly into the darkness to find his keys either, right?

Ravel it and light up the sky.

Big Data analytics can help associates do legal research faster, better, and more enjoyably. Check out the above link for a practical discussion of how. Free webinar starts at noon (PST) on April 3.

¹ Apocryphal, see, e.g., http://www.datascienceassn.org/content/measurement-issues-observational-bias-and-streetlight-effect.

² E.g. Saul Goodman, Esq. (né James McGill).

³ R. Frost, “Blueberries”.

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Kerry Kassam is a resourceful litigator and ruthless data scientist who thinks attorneys should hone their intuition with modern analytics. He is on Twitter: @QuantLaw