Practice Tip: Citing Older U.S. Cases—state and federal

 

 

Do not cite to text near the start of a reported case without examining the text. The introductory material is often an editor’s headnote—such material is not part of the judge’s or panel’s or court’s decision.

Like judges, editors sometimes make mistakes. But if a judge makes a mistake, his mistake is still part of the case law until the decision is set aside on reconsideration or appeal, or overruled by later case law, or, in effect, overturned by subsequent legislation. If the editor’s headnote is wrong and you rely on it, that’s on you—unless you clearly indicate that you are citing to a headnote.

Also, early cases often reported the lawyers’ arguments as part of the introductory material. You can cite such arguments if you clearly indicate that you are citing to a lawyer’s argument, and not the judicial decision itself. If you do not indicate that you are relying on a lawyer’s argument (as opposed to the judicial decision), your error might be inadvertent, but a suspicious judge might think you are actively trying to mislead him/her.

And it pains me to point this out, but some retired judges go back into practice. So a retired judge might act as a lawyer in a case. The editor reporting the case then proceeds to report the argument, and, as a courtesy, the editor reports the argument of “Judge so-and-so.” What a judge-acting-as-a-lawyer argues is just a lawyer’s argument, and it is not part of the judicial decision. So you should avoid inadvertently citing a lawyer as if he or she were the judge on the case.

That’s why you should read the cases you cite, and not rely on how others characterize such cases. Errors along these lines are passed down from generation to generation, and sometimes, the mistake displaces the actual reality. Cf. The Man Who Shot Liberty Valance (1962).

Seth Barrett Tillman, ‘Practice Tip: Citing Older U.S. Cases—state and federal,’ New Reform Club (Dec. 7, 2023, 7:16 AM), <https://reformclub.blogspot.com/2023/12/practice-tip-citing-older-us-casesstate.html>;