Students in law school learn how to perform case law research. But searching through cases is only half of the work involved in identifying the legal bases for a persuasive argument. It takes skill to appreciate why one particular case is “on point” and therefore helpful and why another may be “off point” or “distinguishable” and therefore not applicable. Sometimes lawyers cite off point cases because those are the only cases that come close to relevance, but other times they just may be missing some of the concepts I’ll discuss in this post.

Why should you read this post about finding good case law?

  • You’re the kind of researcher who finds a key word in a document and thinks it’s probably relevant.

  • You want to hear me complain about some bad citations I’ve seen.

  • You want to learn some tips from someone who’s been doing this for awhile.

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The Gold Standard: A Binding Decision on the Relevant Issue with Identical Facts

When doing case law research, the best thing you can find is a case from the relevant appellate court that decides the relevant issue in a situation with identical facts.

So if you are looking for a case that explains that the statute of limitations for your contract case is four years, and you are in a federal court in New York, your ideal case is a Second Circuit case (the direct appellate court) that considers what the statute of limitations is for a contract very much like yours in a dispute very much like yours.

Sometimes you find such a case! They’re often out there!

But disputes can be like snowflakes, every one has unique aspects that may not appear in other cases. And sometimes the relevant aspects of the case aren’t apparent from a decision. So finding identical facts in other cases may not always be possible.

And not every appellate court has a decision for every particular case. The New York State trial courts hear a lot of cases, and so the Appellate Division has a lot of helpful case law. But Rhode Island and Wyoming trial courts hear far fewer cases, so their appellate courts do not have the same breadth of helpful binding case law.

False Friends: Cases to Avoid

A lot of people search on Lexis or Westlaw for cases that mention an important word and believe the case is relevant. Or they may see a helpful statement in the case and believe that the case is good precedent. Not so fast!

First, you need to read the whole case to see what specific issue the court was deciding. if the court did not really decide the issue you care about, then any discussion of the issue you care about is “dicta,” or an irrelevant statement that cannot be relied on.

Second, you need to see if the case was decided in favor of the party that is the analog of your client. if you’re looking for a case that holds that there is a statute of limitations that bars the claim against your client, find a case that dismisses an expired claim. Why cite a case with anything helpful for the opposing side when you don’t have to? But more importantly, searching for a case that doesn’t just have the correct holding, but also the desirable result has two more concrete benefits: first, it makes it easier for a court to take your citation and incorporate it into a decision, and second, if you find trouble finding a case with the right result, that tells you that courts may not often actually do the thing you want to do, which should make you figure out why.

Third, make sure the helpful text is in the actual opinion and not in a dissenting opinion.

Fourth, make sure the procedural posture of the case is the same as your procedural posture. if you want a case that is helpful on a motion to dismiss, a post-trial case may not raise the same issues or apply the same rules.

Fifth, consider differences between the cases you read and your case. Major differences include who the parties are: a case litigated between two sophisticated parties may produce more reliable caselaw than a case where once side defaulted and so its best arguments never reached the court. Similarly, a case between the government and an individual may present different issues than one between two private parties. Think hard about this; no one wants to throw out a good case and go back to the drawing board, but it’s better to reject a so-so case and find a better one than to use the so-so case and leave yourself vulnerable to an easy response by your opponent.

Almost As Good Cases

Even if a case doesn’t have identical facts or come from the direct appellate court, it can still be useful.

Obviously, it’s great to find a case from the highest appellate court, such as a state Supreme Court or the U.S. Supreme Court. I don’t love citing these cases alone, though, for three reasons. First, those courts often issue very lengthy, academic decisions that do not clearly set forth a simple principle of law. Intermediate appellate courts produce quotable language you can cite right away and have easier to understand decisions that make research easier. Second, there are usually many more cases on any given subject at the intermediate appellate level than the highest level. So if a case exists at the highest level, often a case with more similar facts exists at the intermediate level, and you’re better off with that more similar case. And third, at the more local intermediate level, there may be additional rules or interpretations to the rule set forth by the highest court that the highest court itself won’t cite, and the trial court (and you) will need to know what those rules are.

A trial court decision from the relevant trial court can be useful, especially since these are even more numerous and thus more likely to have cases with similar facts. This is especially true if you need case law on issues that people may not frequently appeal, such as some kinds of discovery disputes or minor matters. Trial court decisions, however, may be even more helpful since they may themselves cite helpful appellate decisions that some other lawyer or court personnel found that may not have appeared in your search.

Lastly, a decision with different facts can still be useful if the narrow issue you are citing the case for is not affected by the difference in the facts. So, if you are looking for a case about what the statute of limitations is for a contract claim, then it may not make a difference if the case is about the breach of an insurance contract or the breach of sales agreement or an employment agreement. Still, you should be careful; sometimes these differences do matter.