BlueJayBook: When to Cite

Common Questions About When to Cite and What to Cite

In addition to learning how to cite authority in Bluebook form, it is important to understand what and when to cite. Here are some common questions that plague legal writers.

Question: When do I have to cite to authority?

Answer: Remember that citing to authority provides support for your predictions and arguments. Provide a citation when:

• Directly using another’s words;
• Paraphrasing another’s words;
• Directly using another’s idea; and
• Building upon the analysis or sources of another.

Question: What do I do when I find a recent case that in turn cites an older case as support for a legal principle? Do I cite the recent case? Do I cite the older case? Do I cite both?

Answer: It depends. All other things being equal, you rely on recent cases rather than older ones. But everything is not always equal. Sometimes the older case is from a higher court than the recent case. Sometimes the older case is a landmark. Sometimes you want your audience to understand that the legal principle is venerable. Sometimes one of the cases is binding authority in your jurisdiction, while the other is from a court whose opinions are only persuasive authority.

Here are our rules of thumb:

• If (a) you are going to cite one case, and (b) the two opinions are from the same court, then cite the most recent opinion.
• If (a) you are only going to cite one case, (b) the two opinions are from different courts, and (c) the opinions of both courts are binding in your jurisdiction (e.g., one of the opinions is from your state’s supreme court and the other opinion is from your state’s intermediate court of appeals), then cite the higher court.
• If (a) you are only going to cite one case, (b) the two opinions are from different courts, and (c) one opinion is binding authority in your jurisdiction while the other is from a court whose opinions are merely persuasive authority, then cite the binding authority.
• If (a) you are only going to cite one case, (b) the two opinions are from different courts, and (c) neither opinion is binding in your jurisdiction, then cite the higher court first. If they are courts of equal rank, (e.g., both are supreme courts,) then cite the most recent opinion.

When in doubt, cite both cases.

Question: What do I do when I find two cases, and the more recent one refers to the older case, but they do not stand for exactly the same principle?

Answer: In that setting, our rule of thumb is to cite to the case that most directly fits your own legal problem. Then, if you wish, you may refer to the other case, with an appropriate descriptor:  Doe v. Roe, 100 F. Supp. 2d 35, 29 (D. Minn. 2008) (extending Jones v. Smith, 100 F. Supp. 45, 49 (D. Minn. 1990)). Other descriptors might include “distinguishing,” “relying upon,” “expanding upon,” and the like.

Question: How do I know when I have cited enough authority to support a legal principle?

Answer: It depends. One great statute or case directly on point and binding in your jurisdiction may be sufficient. You present that statute or case in detail, explain why it is controlling, and get out.

But there may not be a great statute or case directly on point. If there is not, then you have to cite enough authority to be able to synthesize a pattern in the case law, sometimes from another jurisdiction, that resolves the problem you are addressing.

Question: Should I cite to authority in the application section of my memo?

Answer: Usually not. This question relates to the IRAC model for organizing legal analysis. The “R” in IRAC stands for “Rule.” When you present your rules, you should always provide citations to the authority that contains those rules. Once you have presented the rules, you move onto the “A” part of the IRAC model: the application. Here, you are applying the rules you just presented to the particular facts of the case. If you have done a complete job presenting the rules that apply, further citation to those rules should be unnecessary. But you can also go back to a rule if you need to present a different aspect of it as it relates to your specific facts. But as a general rule, citation in the application section of a memo is not necessary and may be inappropriate.

Answers to this exercise are in the box immediately below this one.

For this exercise, you will use a set of facts about a fictitious client and two actual cases. You will be given sentences taken in order from a hypothetical discussion section in a legal memorandum. You will need to decide whether each sentence requires a citation to one of the given cases.

FACTS: Your client is Mary Ratchet, a psychiatric nurse. She is employed by Charter Canyon Psychiatric Hospital. On June 14, 2000, the head psychiatrist, Dr. Sam Wright, called her into the staff break room. He then accused her of alcohol abuse and refused to let her leave the locked unit until he was finished talking with her. After the end of the meeting, she left the hospital and has since filed suit for false imprisonment against Dr. Wright.

CASE 1: Randall’s Food Mkts., Inc. v. Davis, 891 S.W.2d 640 (Tex. 1995).

This is the most recent Texas Supreme Court opinion that states the three elements of false imprisonment. This case does not focus on the element of “detention without authority of law.”

CASE 2: Safeway Stores, Inc. v. Amburn, 388 S.W.2d 443 (Tex. App. 1965).

This case focuses on the element of “detention without authority of law.” The court specifies what types of employer-employee meetings are lawful.

_________________________________________________

You need to decide whether each of the sentences below requires a citation to one of the cases above. Answer each of the questions below with one of the following:

No citation

Randall

Safeway

Randall and Safeway

1. In, Texas, the plaintiff in a successful cause of action for false imprisonment must prove three elements: (1) the detention was willful; (2) the detention was without consent; and (3) the detention was without authority of law.

2. In our case, the parties do not dispute that the detention was without Ms. Ratchet’s consent or that the deception was willful; however, the parties do disagree about whether the detention was without authority of law.

3. To prove that an employee has been detained without authority of law, we will have to show that the employer was acting outside of the employment relationship by detaining an employee in an inappropriate confrontation unrelated to her duties.

4. Dr. Wright clearly detained Ms. Ratchet without authority of law.

5. In Texas, an employer may require a discussion with an employee regarding that employee’s duties, but that discussion must take place at a logical, proper location and must be conducted in a logical, proper  manner.

6. In Safeway Stores, Inc. v. Amburn, the court held that an employer was acting within his authority when questioning plaintiff Kenneth Amburn, a cashier, about a possible cash register theft.

7. The court held that discussions regarding employee loyalty are proper, as are discussions held in the only available private place of a business, in this case, the back room of a grocery store.

8. The events of June 14 are very different from the events discussed in Safeway Stores.

9. Although both Dr. Wright and Ms. Ratchet have offices, Dr. Wright chose to detain her in the employee break room.

10. In addition, Dr. Wright wanted to speak with her concerning possible alcohol abuse not directly related to her work performance.

1. Randall's

2. No citation

3. Safeway

4. No citation

5. Safeway

6. Safeway

7. Safeway

8. No citation

9. No citation

10. No citation