The Lawletter Vol 40 No 4
A recent Utah Supreme Court decision sets forth a good example of how not to use out-of-state authority when writing an appellate brief on a question of first impression. Johnson v. Johnson, 2014 UT 21, 330 P.3d 704.
In a divorce case, the court issued an order dividing the husband's military pension, but the wife never obtained the qualified order necessary to have the military pay a portion of the pension directly to her. Some years after the divorce, she petitioned for such an order. The husband argued that she had waited too long, and that her request was barred by laches. The trial court prospectively granted the wife's request, and the husband appealed.
There was no Utah authority directly on point, so the husband cited two New York cases. The court was not unwilling to look outside Utah, but it criticized the manner in which the New York cases had been discussed, and ultimately dismissed the laches issue on grounds of insufficient briefing. The court held:
In his briefing on laches before the court of appeals, Mr. Johnson cited two New York cases but failed to lay out the elements of laches, did not provide specific citations to analysis within the cases, did not discuss the elements of laches or apply them to his case, and failed to discuss whether New York's law on laches is even comparable to Utah law. Utah does not suffer from a dearth of case law concerning laches. [Long footnote citing Utah laches cases omitted.] While we do not go so far as to hold that Mr. Johnson was required to cite case law from Utah in support of his argument, his analysis was so sparse as to not specify the elements of laches. And while Mr. Johnson's brief contained record citations in another section, his laches argument failed to engage in any sort of analysis between the case law that he did cite and the facts of this case. We therefore affirm the decision of the court of appeals to decline to address Mr. Johnson's laches argument on the basis of inadequate briefing.
Id. ¶ 21, 330 P.3d at 711-12.
The lesson of Johnson is that one should not simply cite out-of-state cases, with no discussion or background. Before out-of-state cases are cited, the brief should always state expressly that there are no in-state cases. If the case involves a new application of an old doctrine, as in Johnson, the elements of the old doctrine should be cited from in-state authority. The brief should then demonstrate that the out-of-state cases applied similar elements. In addition, it is essential that the brief close the loop by arguing directly how the out-of-state cases support a favorable result under the facts of the case at hand.
These tasks need not always be done in any mandatory order. Sometimes it works better to discuss general principles from in-state law first, and then introduce out-of-state law; sometimes it works better to discuss the out-of-state case law first, and then use in-state case law to show that the out-of-state case law is based upon similar principles. But it is usually a serious mistake to cite out-of-state case law without relating it as closely as possible to general principles established by in-state case law.
Finally, regardless of whether a brief relies upon in-state or out-of-state authority, it should always conclude with a strong application of the law to the facts, showing how the authority cited leads to a favorable result on the specific facts at hand.
When these principles are disregarded, the best-case scenario is an unpersuasive brief. The worst-case scenario, as Johnson demonstrates, is an outright dismissal for lack of sufficient briefing.