Nontraditional Legal Research: Appellate Briefs
Ebbinghouse, Carol, Online Searcher
Back in the olden days, legal research sources were defined pretty much as codified law, published judicial opinions, legal treatises, law review articles, and ALR (American Law Reports) annotations; if you were in a state with sufficient lawyers to justify it, you might have a legal encyclopedia. Those were the days. One might have wished for more, better, faster information to get an edge. Maybe one even dreamed of getting the appellate briefs submitted to a court in a similar case to determine what arguments worked and which didn't before certain justices. Back then, you wouldn't know that a particular legal issue was the subject of a dispute, much less litigated, until a published opinion came out--and you sure wouldn't know of any brief by any party to such an appeal either. If you read an opinion and wondered what the attorneys argued, you would have to locate the counsel and ask nicely for a copy of their brief to be mailed or faxed or arrange for a messenger to go to the court and try to copy the relevant brief(s).
Then the courts began to provide opinions electronically. I was involved with Case Western Reserve University in the late 1980s, when it sent a representative to the Project Hermes meeting and became the only nonprofit organization allowed to download opinions directly from the U.S. Supreme Court. Wow. Later, briefs of counsel were made available, for those cases that went as far as argument before the court.
Now, in addition to judicial opinions and legal briefs of counsel, there are law firm newsletters and legal blogs (or, blawgs) by individual attorneys, academics, law firms, and law librarians to keep researchers apprised of new cases in just about every field. There are statistical databases, empirical research tools, and big data to massage.
Nontraditional legal research can help provide new ideas and fresh arguments, perhaps a line of reasoning that will persuade your reader to adopt your position. The reader may be a judge (in the case of pleadings or briefs), a legislator who you are lobbying, your superior at work, perhaps a mediator, or even a client resisting your recommended course of action. You can be more persuasive with some help from a well-researched and reasoned appellate brief-especially if the brief persuaded the judge(s) who received it to adopt the reasoning in a published opinion.
There are now free, easy, and/or reasonably priced sources for briefs submitted to state and federal appellate courts. Briefs are the full text of the major arguments made by attorneys for each side in an appeal from a lower court ruling. Here, attorneys marshal their extensive legal research into well-crafted and persuasive arguments to establish what the trial court did wrong (or right) in applying the law to the facts of the particular case.
Perusing another attorney's briefs from a similar case can save the current researcher from having to reinvent the wheel. Most important cases will be cited, any legislative history materials will be brought forth, and important treatises and law review articles might also be mentioned. Basically, one can update the material in another's brief and then concentrate on gathering even more cases that are either more authoritative or more directly applicable to the unique facts in your case.
In addition, other attorneys' briefs may have raised different slants to an argument, spun a story to illuminate an issue better than the later attorney could have dreamed up! Of course, reading the briefs of both parties helps one anticipate opposing counsel's potential arguments in the case at hand-and enable our researcher to craft an argument that will not just block an opposing counsel's particular line of reasoning but persuade the judges to go in a different direction entirely.
So, how does our intrepid researcher know about other cases across the country on the same types of issues? …