Other Practice Tips

• Author: Rebecca Ann Taylor
• Profession: Writer and attorney
• Pages: 179-180

179

Distinguishi ng Bad Case Law and Statutes

When it comes to nding law for your arguments, while you should not

have to litigate the other side’s case for them, you should be aware of the

arguments they are likely to use and the law in support of those arguments.

When it comes to civil rights today, there is no end of bad case law and

statutes on which the defendants will rely in favor of continuing abusive

practices. The eld of civil rights law is so vast and wide that, most likely,

you will nd law in support of your arguments as well, which will most

likely include Supreme Court decisions. The problem is that the defendants

have a literal buffet of recent anti-civil rights law at their disposal. What

can you do in response? Distinguish, distinguish, distinguish.

Very rarely are there two cases that are exactly alike. The factual cir-

cumstances, law applied to those facts, rationale, and policy behind the

decision will vary from case to case. You need to emphasize what is differ-

ent in your case from those bad decisions. For example, perhaps your client

was subjected to the horric experience of being strip-searched in prison,

as Florence v. Board of Chosen Freeholders of the County of Burlington

allows.

1

However, there are two factors in your case for which this deci-

sion does not account: (1) during the strip search, your client was sexually

assaulted; and (2) there is a statute in your state that provides that no one

1. 132 S. Ct. 1510 (2012).

Chapter 11

Other Practice Tips

Taylor CivilRightsLit_20131004_16-30_Confirmation Pass.indd 179 10/23/13 10:43 AM