Making arguments
to a tribunal is dependent upon integrating appreciation and understanding of
two elements into an explanation. First, the facts of your situation are
critical. As important is an understanding of the law and how it supports the
outcome you wish. Understanding how to cite authority (law) may be critical to
winning the argument.
A phrase has
caught my attention over the years. Many an attorney argues her or his point
with "the case law on this is legion." The suggestion being that the
appellate courts have discussed the issue over and over and that the outcome
this attorney wants is therefore so obviously correct that there can be no
argument. No doubt, there are many legal issues that actually fall in this
category. It reminds me of a 1991 release The
Last Boy Scout in which the
protagonist Joe Hallenback (Bruce Willis) repeatedly reminds us "the sky
is blue, water is wet . . .." Hard to argue with. Facts are facts
sometimes.
So, there are
certainly instances in which the "case law is legion." However, this
cliché is overused. It has become a caricature that no longer evokes the
intended reaction of trust or reliance. Instead, this statement and others like
it raise questions. In a recent conversation at a conference this phrase was
used to describe the state of the law. A second attorney in the group responded
with "can you name one case?" The first attorney could not; could not
name one case that stood for the proposition/argument that was being advocated.
It made for an interesting discussion. If there are really that many examples,
if the "case law is legion," shouldn't we be able to name one example?
If there is
authority that supports your argument, I recommend finding it and bringing it
to the tribunal's attention. I recommend bringing or citing a case. Remember in
this context that there is a hierarchy of decisional law. If you can cite a
Supreme Court case that might be best. If not practical, then a controlling
appellate court case would be beneficial. In Florida workers' compensation,
this would likely be from the Florida First District Court of Appeal. If that
is not available, a persuasive appellate court case (from one of the other
District Courts) might be helpful. The hierarchy may differ from state to
state, but the logic still applies. Trial judge decisions are more
available now than ever before, but those decisions are more likely to be persuasive
than controlling.
This reminded me
of another interesting legal argument that came to my attention recently. A
young associate is arguing a motion before a trial judge. The associate works
for the firm of Smith, Jones and Green (a fictional law firm used to illustrate
this example). One side of this particular case provides the trial judge a
cogent, logical argument for a particular outcome in the case. Copies of two
appellate cases (as suggested above) are provided to the judge, which each support
the argument.
Then it is the
young associate's turn. The associate begins with "judge, that cannot be
the law." And, continues: "I discussed this case with Mr. Green, who
has been practicing workers' compensation for thirty years, and if that were the
law I am sure he would have told me." This argument is questionable on a
couple of levels. Primarily, Mr. Green is not an appellate court. Even if he
(or your partner) "wrote the book" on workers' compensation, that
book would be an interpretation of those statutes and appellate cases that
recite and define the law. Mr. Green, in this example, is at best a
"secondary source," and at worst is just a rumor.
But as
important, in this example, Mr. Green has made no representation whatsoever.
Even if one were to accept that Mr. Green is the "be all and end all"
of legal knowledge, the undeniable and indisputable "font of wisdom,"
he has still made no representation. The young associate is not asserting that
Mr. Green told her/him that this is or is not the law. The associate is
asserting that Mr. Green told her/him nothing and that if opposing counsel's
argument were true then Mr. Green presumably would have spoken up and said
something. In other words, the young associate actually expects the trial judge
to disregard the proffered legal authority because Mr. Green apparently,
purportedly, never said anything. This "Mr. Green would have told me"
argument is perhaps not the best first choice.
In another
recent example, I ran across a trial order that explained the facts, recited
the law, and adjudicated the issue. That is not uncommon. But, this order
caught my eye because the law that was recited was not the plain language of
the statute itself. It was not controlling authority from the Supreme Court or
the First District Court. It was not persuasive authority from another Florida
District Court. It was not another trial judge decision, or an interpretation
of a similar statute in another state.
The authority
cited in this order was Dubreuil's
Florida Workers' Compensation Handbook. This is an example of what lawyers
call "secondary" authority. Some would argue that it is even less
authoritative, calling it instead "tertiary" authority. It is a book
that provides the author(s) interpretation of what the statute or controlling
cases say. It is the author's or authors' opinion of what the statute or court
cases say. There are a great many publications like this, which provide an
interpretation or opinions about the law.
This particular
book was originally written by an insurance professional named Dubreuil, who is
deceased. As it was originally written, it was an insurance professional's
opinion of Florida's workers' compensation law. It was not written by an
appellate court, or a trial judge or even a lawyer. Since it was originally
published, it has become part of the Lexis library, and there are now attorneys
involved in updating and editing the book. But it remains at best a secondary
source in which someone's opinions about the workers' compensation law are
expressed.
There are many
secondary sources that are relied upon in deciding cases. Perhaps the most
noteworthy secondary source on workers' compensation is Larson's Workers' Compensation Law written
initially by Professor Arthur Larson, of the Duke University School of Law.
Arguably the most comprehensive secondary source on Florida workers'
compensation law is The
Florida Workers' Compensation Handbook written
by attorney Leo Alpert and later edited by Jonathan Alpert, an attorney,
workers' compensation judge and professor at
Stetson University College of Law. Similarly,
perhaps the most noteworthy secondary source on Florida evidence law was
written by Charles Ehrhardt, a professor of law at Florida State University
(Professor Ehrhardt's book has been cited by appellate courts more than 500 times).
Each of these books has been cited and relied upon by the Florida First
District Court of Appeal and The Florida Supreme Court. And, there are some
examples of appellate courts citing Dubreuil's
Handbook.
In a related
side note, I heard of a lawyer once arguing that she/he had attended Florida
State and took an evidence class taught by Professor Ehrhardt. She/he
apparently argued against an evidentiary interpretation with a similar "I
took evidence with Professor Ehrhardt Judge, and if that (the other side's
argument) were the law I am sure Professor Ehrhardt would have mentioned
it." Not much different than the "partner Green" argument
discussed above.
These scholarly
treatises are the opinions of others about the law. There are times when their
opinions are found persuasive and even adopted by tribunals. They can be great
tools in the research process. These sources can lead to court opinions that
are persuasive or controlling authority, and they can assist one with
understanding those statutes and cases.
But, at their
best, these publications are all opinions. It can be highly persuasive when the
opinions of scholars, lawyers, and judges agree with your own, but they remain
opinions. It is more persuasive if the argument can also be supported by a
statute and the cases which are cited in these books. It is suggested that only
when one cannot find statutory or case authority should one resort to citing
such secondary sources. And then, it is perhaps more persuasive to argue the
opinions of law professors and attorneys than to rely on those without such
credentials.
Another side note: never argue "I read it on Judge Langham's Blog" as legal authority for an argument. This blog has the authority and persuasive effect of a Bazooka Joe comic from a bubble gum package (and I am being generous with myself here).
I had the chance
to discuss the Dubreuil's Handbook example
with a fellow judge recently. At one point he asked "Dubreuil was not a
lawyer?" I took from that there is a chance this author's credentials are
not well known. So, if you do decide to cite a secondary source, I recommend
knowing the background of the author. In a hearing, during an argument, is not
the time to learn of an authoritativeness question.
Thus, three
examples of interesting legal arguments. Bloviating with "the case law is
legend" (but I could not find a single example to cite or bring) is not
likely to win arguments. Supporting your arguments with what some other lawyer
told you (or worse did not tell you) is also unlikely to be persuasive.
Advocates should remember the hierarchy of authority from statutes to
controlling cases and persuasive cases. Secondary sources should be used to
locate and help understand those, but should be cited sparingly. If forced to
cite such a secondary source, it will perhaps be a stronger argument if the
source was written by a law professor, judge or lawyer.
