After the Table of Contents, discussed in the last post, comes the Table of Cases. Rule 208(b)(1), SCACR. This is a misnomer in that Table is better described as a Table of Authorities because other authorities, such as statutes, must be listed too.
In listing the authority, Rule 268, SCACR, governs how to cite the South Carolina materials. For other authority, the rule recommends A Guide to South Carolina Legal Research and Citation, and the Bluebook, A Uniform System of Citation. But it allows using other citation publications too. Other publications that may be consulted include the Association of Legal Writing Directors’ competing citation manual. Professor Peter W. Martin of Cornell University has also published a free citation manual on-line.
All of these manuals stress that a citation must be complete. Completeness achieves several related goals:
- tells the reader how to find the document
- gives the reader alternative sources for the document, and
- gives the reader enough information to decide if the reference is worth pursuing
Completeness further requires accuracy in identifying the court rendering the opinion. Under Rule 268, SCACR, for example, the primary difference between citing an opinion from the South Carolina Supreme Court and the South Carolina Court of Appeals is that “Ct.App.” is placed before the date in the parenthetical. John v. Doe, , (2012) is a Supreme Court case. John v. Doe, , (Ct.App. 2012) is a Court of Appeals case. By the way, these apparent links do not work because the citations are made up.
In a federal court case where state law was at issue, I was once able to make hay from opposing counsel omitting the “Ct.App.” when citing a South Carolina case. The omission allowed me to argue that counsel misidentified the decision as binding Supreme Court precedent when it was, in fact, a non-binding intermediate appellate court decision.
Giving a case’s subsequent history is likewise crucial. A brief that I recently read neglected to mention that a case cited was overruled on another ground. Opposing counsel quickly added the subsequent history, thus gaining credibility with the Court.
Lastly, in Tip 78 of The Winning Brief, legal writing guru Bryan Garner recommends that one learn the correct abbreviation forms for common words in case names. Formal abbreviations may be expected by the reader, and they in any event give the Table of Authorities a cleaner appearance.
Has anyone else caught opposing counsel citing an overruled case? Please let us hear from you. You may reach me at www.attorneyroberthill.com.