Death Benefit by Ken Isaacson

Author:Ken Isaacson [Isaacson, Ken]
Language: eng
Format: epub
Published: 2017-09-05T23:00:00+00:00

Chapter 26

I spent the better part of the day cite-checking a brief that Ralph was under deadline to submit to the court in the morning. Cite-checking is boring, but necessary.

The rule of law requires consistency, and consistency requires that similar factual situations be dealt with by the courts in predictable and like fashion. When a court decides a matter, the judge often writes an opinion explaining the rationale of the decision, and those opinions are compiled in volumes upon volumes of legal tomes—and more recently are uploaded to the internet. When faced with the task of convincing a judge that the facts of your case require the result you desire, your job, as an attorney, is to find other cases with comparable facts in which the court ruled the way you’d like it to now. Sometimes, the attorney will be lucky enough to find a case that’s “on all fours”—nearly identical facts and the same question of law—but more often a good dose of creativity is required to discover similarities among differing circumstances, and to argue by analogy that if the facts in Case A brought about a particular result, then by stretching the reasoning just a little it would be logical for Case B to be decided in the same way.

Finding the precedent applicable to your case is what legal research is all about, and the brief you submit to the court is the road map to the reasoning you want the court to follow. Previously reported cases—the precedent you cite—are catalogued in a precise way, and quite an arcane method of reference has developed so that lawyers and judges everywhere can easily find any court opinion, from any jurisdiction, when cited. It’s the job of the cite-checker to confirm that the citations in a legal brief are in the proper form, and that they lead to the intended cases. If a portion of a case is quoted in the brief, the accuracy of the quote must be checked, and the page number in the opinion verified. And care must be taken to ensure that the cited case was not overruled by a higher court. In short, you have to be certain that if the judge wants to check out any of the sources referred to in the brief, he or she will be able to find that source quickly and without difficulty—and that the source will say and mean what you said it will.

Like I said, cite-checking is boring. But sloppiness can, believe it or not, lead to serious consequences. Our Legal Methods professor enjoys telling the story of the $100 Million Cite-Check Mistake, in which citation to the wrong statute in a federal plea agreement cost the United States government more than $100 million. Some guy pleaded guilty to a charge of tax evasion and was sentenced to prison, but because the Justice Department referred to the wrong statute in the plea documents, the judge concluded he didn’t have the authority to order the defendant to make restitution to Uncle Sam.

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