There is nothing quite like the joy of finding a mistake in opposing counsel’s brief. We litigators can be a bit twisted. For non-litigators, joy typically comes from spending time with loved ones or engaged in a hobby. But for many litigators (myself included), pure joy comes from finding a mistake in opposing counsel’s brief.
If that is your version of joy, read on. This article breaks down all the ways that you can catch mistakes in opposing counsel’s briefs– and protect yourself from the humiliation that occurs when opposing counsel gleefully points out your mistakes.
Relying on Bad Law: The Stuff of Dreams and Nightmares
Ask any seasoned litigator and they can recount a war story of when a citation error in a brief impacted the outcome of a motion or even a trial. Even one miscited case can significantly erode opposing counsel’s credibility, which, in turn, can bolster your client’s position and sway the court to rule in your favor.
Of course, this means that we all live in fear of opposing counsel (and the court) finding mistakes in our briefs. I still get heart palpitations from the time a judge said to me, “Credibility is severely lacking in the courtroom” after I finished delivering an oral argument that relied in part on an overturned case.
I was mortified and surprised. The case I had erroneously cited had received a yellow flag in Westlaw. Because the flag was yellow (and not red), I figured this case was good enough to include in my oral argument. But if I had done my diligence, I would have realized that the case I cited had relied in significant part on another case that had been reversed.
So, how do you find mistakes in opposing counsel’s brief and make sure that your brief is unassailable?
The Old Way of Cite-Checking
The process of cite-checking your brief and opposing counsel’s brief has traditionally involved hours of painstakingly careful legal research. Usually, that process has involved the following:
- Compile a table of all authorities cited in your brief.
- Type in each citation into your legal research database. Or, for attorneys who began practicing long before the advent of electronic legal research databases, use books from Lexis or Westlaw to look up each citation.
- Read every single case cited in your brief, as well as each authority citing that case, to determine whether the cited case has been reversed or overruled in any respect.
- Die a little bit inside.
This process can be incredibly time-consuming (not to mention painfully dull). If you are lucky, you get to delegate the task of cite-checking to a trusted paralegal or junior associate.
However, many solo practitioners and small firm attorneys simply do not have that luxury. Cite-checking may be something that you try to squeeze in 30 minutes before you file your brief (and those 30 minutes are often interrupted by client phone calls). Usually, 30 interrupted minutes of cite-checking is not enough to make sure that your brief contains all relevant precedential authorities, does not miscite any cases, and does not rely on any cases that have been reversed.
The New Way: Using Technology to Catch Mistakes in Briefs
So, what do you do if you are a time-strapped solo practitioner without an army of paralegals or associates to help you cite-check every brief you file and every brief filed by opposing counsel?
Use a software tool that allows you to cite-check a brief in just a few seconds.
There is a small but growing number of legal research platforms that allow users to upload their briefs and let technology do the tedious work of cite-checking. Here, I look at four different electronic cite-checking tools available today and discuss the pros and cons of each.
BriefCheck – Lexis Advance
This web-based tool allows you to upload your brief and run it through Lexis’ Shepards citation system. BriefCheck will then generate a Shepards report, which will indicate whether your document cites to any authorities that have received negative treatment.
- BriefCheck supports a variety of documents and file types, including briefs (as the name implies) as well as memoranda, pleadings, and motions.
- BriefCheck allows you to check multiple citations and quotations at once. Just upload your document, and BriefCheck will generate Shepard’s report that analyzing the validity of each cited authority.
- BriefCheck is not included in every Lexis Advance subscription plan.
- BriefCheck will not identify relevant authorities you failed to cite. It will only analyze the authorities that you have actually cited.
Drafting Assistant – Westlaw:
Drafting Assistant allows you to upload a Word document and then choose from a menu of options, including checking the status of your citations.
- Like Lexis’ BriefCheck, Westlaw’s Drafting Assistant works with a variety of litigation documents.
- Drafting Assistant will cite-check all the authorities in your brief at once.
- Drafting Assistant’s “Locate Authority” feature allows you to find additional cases to bolster an argument in your brief. Just highlight the text in your brief that you want to support and then click “Locate Authority” to search Westlaw for cases to support your point.
- Drafting Assistant is not included in every Westlaw subscription. Even if Drafting Assistant is included in your plan, you will likely have to pay extra to actually use this tool. Some publicly available pricing plans state that Drafting Assistant’s citation-check feature costs $125 per use. If you are drafting multiple briefs a month, that cost can add up quickly.
- Drafting Assistant will not tell you that you are missing relevant authorities. If you want to find additional authorities to support a particular point, you can do that using “Locate Authority,” but Drafting Assistant will not automatically generate a list of relevant authorities that you failed to cite.
Clerk – Judicata:
This web-based tool offered by Judicata will not only analyze the validity the legal citations in your brief but also suggest additional cases to cite in support of your arguments.
- Clerk will cite-check all the authorities in your brief at once.
- Clerk will generate a comprehensive report on the authorities in your brief. This report will not only check the citations in your brief but will also let you know which legal arguments are most susceptible to attack, based on a historical analysis of how your cases have been previously cited in other briefs.
- Clerk will identify the legal principles included in your brief and suggest other cases to cite in support of those principles.
- Clerk, like the rest of Judicata, offers California state law only. While this can be a great option for California state court litigators, the rest of us can’t use it right now.
CARA – Casetext:
CARA is Casetext’s web-based legal research tool, which uses A.I. technology to analyze the fact patterns, jurisdictions, and authorities cited in your document. You can use CARA to cite-check your brief (or the brief of opposing counsel). However, you can also use CARA to find relevant authorities that are missing from a brief.
- CARA works with all document types, including PDF files. Simply upload your document, and CARA will cite-check all authorities in your document within a couple of seconds.
- CARA makes it easy to see which cases in your brief have been negatively treated. After uploading your document into CARA, just click on the “cited in” tab to get a list of all authorities cited in your brief (or opposing counsel’s brief). CARA will identify authorities with negative treatment with red flags. Orange flags are used to identify cases that should be treated with caution — cases that have not been reversed or overruled themselves but rely in significant part on other authorities that have been reversed.
- You can use CARA to help you draft a brief. You can upload a complaint or even your notes into CARA to find relevant authorities. CARA will cite-check whatever authorities are currently in your notes or the draft of your brief and will also suggest additional relevant authorities to cite. But if your document does not contain any cases, CARA will still suggest relevant authorities for you.
- CARA makes it easy to see what your brief is missing. This is a key distinguishing feature from the other cite-checking software tools. After uploading your brief into CARA, search for cases on a particular topic (e.g., copyright). Then, click “hide cited authorities.” CARA will show you all cases that are relevant to your particular topic (based on CARA’s analysis of the facts and arguments in your brief) but are currently missing from your brief.
- CARA works across all jurisdictions (all 50 states and all federal courts).
- CARA is included in every Casetext subscription. There is no additional cost for using CARA or clicking on the authorities suggested by CARA. (And a subscription to Casetext is already very affordable at $65 per month).
- CARA does not always recognize Westlaw or Lexis citations to unreported cases. You can still access unreported cases in Casetext, but you need to look up those unreported cases individually by case name, not by their Westlaw or Lexis citation.
- While CARA is pretty easy to use, litigators could still benefit from a demo that shows you how to use CARA effectively. But Casetext offers free one-on-one demos at your convenience, even if you haven’t paid for a subscription. Just click on the following link (https://casetext.com/demo) and schedule a demo!
In a Nutshell: Cite-Check the Easy Way
The pros and cons of each cite-checking software tool are summarized below. But if you take anything away from this article, it is that you should: (1) cite-check your brief and opposing counsel’s brief, and (2) use technology to do it the easy way!
|Software Tool||Does it cite-check all authorities at once?||Is it affordable?||Does it find cases to cite?||Does it show you which authorities you are missing?|
|BriefCheck from Lexis Advance||Yes||Only available on certain Lexis Advance subscriptions, and those subscriptions seem pricey.||No||No|
|Drafting Assistant from Westlaw||Yes||I can’t afford this.||Yes, but only if you use the “Locate Authority” tool on paragraphs that you choose to highlight.||No|
|Clerk from Judicata||Yes||Yes||Yes, but it is limited to California state cases.||Yes, but it is limited to California state cases.|
|CARA from Casetext||Yes||Yes||Yes||Yes|
Here’s to less time spent cite-checking and more time spent basking in the glow of another litigation victory!