Be Wary of Using Others’ Briefs for Legal Research

Case opinions state the law. Matthew Bender treatises are well known as providing an authoritative perspective of legal developments. But how dependable are appellate briefs filed with the courts as legal research tools? Well, the main problem with briefs, whether written by the best litigators at the finest law firms or a solo practitioner who barely graduated from the worst law school in the country, is that they don’t always contain a thorough or sometimes even accurate analysis of the law. And even when the arguments are clearly stated, the cases included as support don’t always stand for the point of law for which they had been cited.

Consider what one federal district court judge wrote a couple years ago:

Both attorneys have obviously entered into a secret pact – complete with hats, handshakes and cryptic words – to draft their pleadings entirely in crayon on the back sides of gravy-stained paper place mats, in the hope that the Court would be so charmed by their childlike efforts that their utter dearth of legal authorities in their briefing would go unnoticed. Bradshaw v. Unity Marine Corp. , 147 F.Supp.2d 668, 670 (S.D. Tex. 2001) (emphasis added).

And this is far from a solitary instance. The following examples are just a few of the hundreds of times where judges have found attorneys’ briefs to be less than stellar examples of legal research and writing:

“Dockeray’s brief is poorly drafted and almost illegible.” Dockeray v. Ozz , 2004 U.S. App. LEXIS 17225, *1 (5th Cir. 2004)

“Armstrong’s briefs are prolix and poorly organized.” Armstrong v. Rushton (In re Armstrong), 99 Fed. Appx. 210, 213 (10 th Cir. 2004)

“[B]y simply reprinting the Sixth Circuit’s work out of its original context, certain statements in Lavanture’s brief are inaccurate.” United States v. Lawrence , 74 Fed. Appx. 221, 224 n2 (3rd Cir. 2004)

“Willis contends that the fact that the forklift was manufactured in Ohio ‘established that venue in the State of Illinois is not proper.’ Appellant’s Brief at 7. This is just plain wrong.” Willis v. Catepillar Inc., 199 F.3d 902, 905 (7 th Cir. 1999)

“Not only did plaintiffs’ counsel apply the wrong law in his brief . . .” Okla. ex rel Forbes v. Southwestern Bell Tel. Co. , 2002 U.S. Dist. LEXIS 4091, *14 (N.D. Okla. 2002)

A Consensus among Litigators
Many litigators recognize that briefs are sometimes inaccurate. In fact, we recently discussed the utility of briefs with a number of litigators from across the country, and what they related was not surprising. They almost universally discounted using previously-filed appellate briefs as a basis for legal research, mainly because of their shared concern of the quality of work product created by an author with whom they were not familiar – and their fear that looking to external briefs for guidance could actually cause them to be less efficient due to the need to “recheck” someone else’s work and possibly find serious deficiencies.

As a result, those litigators thought that briefs would be used only as a last resort for legal research, particularly on a cutting-edge issue. Case opinions, treatises, law review articles, Restatements, American Law Reports and other authoritative sources (including internal work product), recognized as being authored by experienced practitioners having a thorough knowledge of the topic at issue, were viewed as superior alternatives for legal researchers who needed to get a handle on the law.

Don’t Reject Briefs Altogether
On occasion, however, there may be a need for a researcher to utilize briefs, either as that “last resort” of legal research or to get more background about a particular court’s opinion. To assist those researchers, LexisNexis offers several options, most of which are easily accessed by clicking on the “Briefs & Pleadings” link under “Legal Research & Drafting” on the right side of the LexisNexis litigation Research Tasks Pages.

From there you can find:

• Briefs filed with the Supreme Court of the United States (since 1979), as well as some other selected briefs databases;
• Links to both court websites and “entity” (e.g. ACLU, DOJ, SEC, etc.) websites where briefs can be retrieved for free (and for courts that do not currently offer free access to briefs from their websites, the document retrieval service offered by LexisNexis CourtLink ® is a powerful alternative, enabling a researcher to get any document, including a brief, from any court across the country within about 24-48 hours);
• Free access to the Martindale-Hubbell® database of over 9,000 (and growing) legal articles written by attorneys from across the country (this collection of legal articles offers an alternative source of information when trying to get a sense of how a particular issue is being addressed, rather than conducting a costly search through a briefs database).

So, if you are thinking about using briefs for your research, be aware of the potential pitfalls as well as the powerful – and sometimes free —alternatives that are available to you.

David V. Dilenschneider, Esq., Director, Litigation Product & Content Development, LexisNexis