The art of persuasion through legal citations.

• Author: Fox, Susan W.
• Position: Appellate Practice

Persuasive citation of legal authority is an essential part of legal writing. Proper citation involves knowing not only the basic form for citing cases, constitutions, statutes, rules, books, articles, and other legal authority, (1) but also requires understanding the purposes and best practices for citing legal authority. The purpose of this article is to help you develop a more persuasive and effective citation style by discussing development of a citation plan, the hierarchy of authority, the role of courts and precedent; the use of pinpoint cites, parentheticals, and signals; and placement of citations.

The primary purposes of citation are support and attribution for the propositions advanced by the author. Proper citation further requires consideration of the source of the applicable law, whether the authority is binding or merely persuasive and the credibility attributable to the author or authority cited. In short, persuading a court to follow precedent, distinguish it, or overrule it--as the case requires to advance your client's position--is in large part dependent upon credible citations and sound reasoning based upon the citations.

Developing an Outline and Citation Plan

Numerous books about effective legal writing styles are readily available. (2) Authorities on legal writing agree that the goal is to clearly and carefully guide the reader straight to your "inescapable" conclusion. Start with an introduction that includes your thesis--which announces your major conclusion--and a roadmap outlining your legal analysis, then follow that roadmap in the succeeding paragraphs by explaining and supporting your conclusion. (3) An example of such a writing style is known as the inverted pyramid. Like a newspaper article's lead paragraph, the inverted pyramid style involves a first paragraph that tells the entire story. "As the argument is developed, the paragraphs become more and more specific until the finest points and subpoints have been established." (4) Creating a masterpiece of persuasive legal writing requires planning and developing an outline of your argument.

In the same way that you plan and outline your legal argument, you should also plan and outline your citations. Review and analyze the pertinent legal authority, then select the most persuasive to include in your document. By developing a citation plan before you start writing, you will know what legal authority should be included to prove your conclusion, and you will be able to develop your legal argument around that authority to make it more persuasive to the reader.

Choose Your Citations Based Upon the Hierarchy of Authority

The primary source of your legal authority will usually determine your most persuasive authorities. Consequently, as you develop your citation plan, you must have a clear grasp of the source of legal authority. Determine whether your case is controlled by constitutional, statutory, or common law.

The most persuasive legal authorities in Florida courts are listed below in the order of their persuasiveness:

1) Applicable Constitutional or Statutory Provision. If a constitutional provision, either state or federal, is directly invoked by your legal argument, it is your most persuasive authority. If your primary source of legal authority is a statute, then the statute applicable to your case will be the most persuasive authority. Florida courts apply rules of statutory construction and construe statutes in a manner that avoids inconsistency or unconstitutionality, if possible. (5)

2) Florida Court Decisions. In general, for questions of Florida law, decisions of the Supreme Court of Florida are most persuasive and must be followed by all lower Florida courts. (6) If the Supreme Court of Florida has not addressed the issue, decisions of the district court of appeal for the territorial jurisdiction in which the case is heard are binding on all lower courts. (7) If there is no controlling decision by the Supreme Court or the district court having jurisdiction over the trial court on a point of law, then a decision by another district court of appeal is binding. (8)

3) Other State Court Decisions. A case from the highest court of another state supporting your position has persuasive value provided that it is good law and in accordance with the weight of authority. In presenting out-of-state cases, the writer should explain why the majority rule used in those cases should be adopted in Florida. In this instance, multiple citations from the highest courts in the states that have adopted the majority rule may be impressive. The higher the number of cases that support the majority position, the more persuasive these citations will be...