18 Sep BEST APPROACH TO CITING OF JUDICIAL AUTHORITIES IN LEGAL ARGUMENTS’ PRESENTED BY TAMUNOBELEMA ITAMUNOALA ESQ
A LECTURE ON THE TOPIC: ‘BEST APPROACH TO CITING OF JUDICIAL AUTHORITIES IN LEGAL ARGUMENTS’ PRESENTED BY TAMUNOBELEMA ITAMUNOALA ESQ. DURING THE WEEKLY OFFICE MEETING OF THE LAW FIRM OF GRANVILLE ABIBO & CO. HELD ON THE 20TH DAY OF JULY, 2018.
The task of citing Judicial authorities is one that confronts every legal practitioner in active legal practice. Indeed, the essence of Judicial authorities, particularly in legal arguments, cannot be overemphasized. Consequently, it behoves every legal practitioner to exert conscious efforts into learning and indeed learning beyond the rudiments of citing judicial authorities.
Quite unfortunately, in our legal practice today, very few legal practitioners are abreast with the rules for proper legal citation, resulting in the improper application of authorities, particularly Judicial authorities, in such a way that they end up conveying a meaning other than that which the writer intended to convey to the Court at the point of writing the legal argument. There is no gainsaying that this has accounted for the loss of several juicy and promising cases of legal practitioners on diverse occasions. More importantly, unless some positive focus is shifted towards this direction, it will continue to account for more losses in the legal practice of Legal Practitioners.
It is for this reason that I deem it necessary to appreciate the management of the law firm of Granville Abibo and Co., for setting out a topic as this for discussion today. It is my sincere desire that at the end of this lecture, a greater number of lawyers would have become informed about the proper way, as well as the importance of proper citation of judicial authorities, particularly in legal arguments.
WHAT ARE JUDICIAL AUTHORITIES?
For the purpose of this paper, judicial authorities refer to decisions of superior Courts which form binding precedents that a Court or other judicial body is bound to apply while deciding subsequent cases involving similar issues or facts. Therefore, the phrase ‘judicial authority’ may be used interchangeably with ‘judicial precedents’ and ‘case law’ in this paper.
USES OF JUDICIAL AUTHORITY IN LEGAL ARGUMENTS
The importance of Judicial authorities to a lawyer cannot be overemphasized. However, it is notable that judicial authorities may be applied to serve various purposes in legal arguments, including:
- It could be used as a sword to attack the opponents case (such as where the opponent makes a fundamental error in the conduct of his case and case law is applied to defeat the case of that opponent e.g. In the case of an unsigned writ of summons, the myriad of authorities are clear that it is incurably bad. See, CITEC INT’L ESTATES LTD V. YUSUF & ANOR)
- It could also be used as a sword to puncture the jurisdiction of a Court. (e.g. where any of the ingredients stated by the Supreme Court in MADUKOLU V. NKEMDILIM is lacking, the Court will not have Jurisdiction)
- It could be used as a shield to protect a case that would otherwise have been destroyed. (e.g. HERITAGE BANK LTD V. BENTWORTH FINANCE (NIG) LTD where the Supreme Court held that except for originating processes, Courts should no longer strike out Court processes that are inadvertently signed in the name of a law firm, unless the other party objects to such irregularity at the earliest opportunity.)
- It could be used to strengthen your legal argument on a point. (Such as where Counsel is informing the Court that the facts of his case are similar to those of the selected judicial authority, and so the Court should not deviate from the earlier decision upon which a precedent has been formed)
- It could be used to counter your opponents argument on a point. ( E.g. where your opponent merely argues (without authority) that a party can waive his right to challenge the jurisdiction of the Court, you may counter his argument with a judicial authority where the contrary was held)
- It could also be used to counter your opponent’s authority (e.g. where a superior Court over rules the decision of the lower Court upon which your opponent relied)
- It could be used to distinguish your opponents authority from a relevant fact in issue. (Such as where counsel is informing the Court that the facts of the instant case are different from those of the opponent’s judicial authority, and so it would be improper for the Court to hold in line with the opponent’s Judicial authority).
- It could be used to guide the Court on a proper procedure or law (Such as in a contract case, where the express terms of the contract are ambiguous and the implied terms are not farfetched)
BEST PRACTICAL APPROACH TO CITING JUDICIAL AUTHORITIES IN LEGAL ARGUMENTS
Worthy of note is that there are various effective approaches to citing judicial authorities in legal arguments and the resolution on which is best is relative, depending largely on the person and his style of writing. Precisely, it may be difficult, if not impossible, to handpick and name a particular approach as the best approach to citing judicial authorities in legal arguments. Consequently, this paper aims to stipulate central guiding principles for proper citation of judicial authorities in legal arguments using a singular effective approach. In so doing, legal practitioners would be able to conveniently learn the principles and apply them properly, using an approach that best suits them.
Accordingly, the central guiding principles for proper citation of judicial authorities in legal arguments are as follows:
- CHOOSE JUDICIAL AUTHORITIES CAREFULLY
This is perhaps the most important rule of citing judicial authorities, because your choice of case law could determine whether your usage of the case law would be to your ultimate benefit or to the ultimate destruction of your case. In choosing judicial authorities, the following rules must be carefully followed:
- Ensure to do an in-depth study of all cases you intend to strongly rely on. Never cite any judicial authority that you have not read comprehensively. According to Chinua Asuzu, the best way to study a judgment is to read the whole case and make case notes containing:
- a summary of the facts in your own words;
- an analysis of the issues to elucidate them and state them as deep issues in your own words;
- a summary of the Court’s reasoning in your own words; and
- finally select a few choice quotations you might want to use for your legal argument.
- Carefully study your opponents authorities to ensure that the Court actually said what he quoted.
- Identify how you intend to apply the judicial precedent to your case. As noted above, there are various uses of judicial authorities. Therefore, in choosing judicial authorities, you must be clear on what purpose you want it to serve.
- Know and choose your best precedents. According to Bryan A. Garner, it is advisable to rely majorly on cases where the successful parties case aligns with your case. This is because, no amount of supportive language in the opinion of the judge can help you if, in the end, the decision does not support you. Therefore, your best precedents are those in which the trial Court did what you now ask the Court to do and the appellate Court affirmed the trial Court’s decision. (e.g. If your argument is for dismissal of the suit, your best precedent will be one in which a party in the same position as your client successfully requested for dismissal at the trial Court and the trial Court’s decision dismissing the suit was allowed on appeal.)
- Specifically ensure that what you intend to rely on is actually the judgment of the Court and not merely a dissenting opinion. Also, clarify that the Judicial authority says what you think it says. Therefore, Law reporters summaries should only be used as pointers to relevant pages of a judgment.
- Carefully ensure that the decision you wish to rely on has not been overruled by a superior Court.
- Ascertain whether there are more recent dissenting authorities on the issue given by a Court of concurrent jurisdiction.
- Follow a hierarchical order in choosing judicial authorities. The most recent judicial authorities should be preferred, as those form better precedents likely to be followed by the Court. Also, according to the doctrine of stare decisis, a lower Court is bound to honour the findings of law made by a higher Court, where such findings are in respect to same facts and issues before the lower Court. Consequently, where available, it is preferable to use precedents formed by the highest Court.
- Never cite a judicial authority unless it has a significant purpose to serve.
- It is preferable to choose judicial authorities that are easily accessible, such as those reported in the popular law reports.
- Always remember that whereas ratio decidendi is binding, obiter dictum is not. Therefore, correctly ascertain that what you wish to rely on forms part of the ratio decidendi.
- Treat concurring judgments with caution as they may include pronouncements veering off the ratio decidendi
- To ascertain the ratio decidendi, relate the decision and pronouncements to the facts and controversy the Court was properly faced with. Whereas in appellate matters, relate the questions the Court was called upon to answer to the decision of the Court. The ratio decidendi is simply the Court’s solution to the problem presented to it by the parties.
- APPLY YOUR CHOSEN JUDICIAL AUTHORITIES PROPERLY
After a proper choice of judicial authority, the next important task is the proper application of the judicial authority. In proper application of judicial authorities, the following rules should be considered:
- RELATING CITED AUTHORITY TO CASE AT HAND:
One effective method of relating cited authorities to the case at hand is by doing a concise comparative analysis of the facts and issues in both cases as they relate to your argument and then emphasizing the similarities. This is most helpful where the facts and issues of the judicial authority you want to relate to your case are closely related to the facts and issues in your case, in such a manner that you can urge the Court to do for you what the Court did in the Judicial authority being cited.
- DISTINGUISHING THE OPPONENT’S AUTHORITIES:
This could occur in various circumstances such as when your position is that the facts, issues and circumstances in your opponents authority are different from those of the instant case and therefore should not be followed in deciding the instant case; or where your position is that the facts, issues and circumstances in your opponents authority are different from those of the authority cited by you and so your position which is supported by the authority you cited should be followed. Whatever the case, the sole aim here is to discredit your opponent’s authority.
In either case or any other case, this could also be achieved using the same approach employed above. Hence, it could be achieved by doing a concise distinctive analysis of the facts and issues in both cases as they relate to your argument, and then emphasizing the differences and showing the Court reasons why it should not rely on your opponent’s authority.
- In citing judicial authorities, first state the principle in your own words, then support it with the relevant case law.
- If the authority you are citing gave exceptions, you should first state those exceptions and show that your case does not come within any of the exceptions.
- Endeavour to show that the authority you are relying on is not only binding but is also good law. To do this, you should explain why the principal cases you relied on were decided correctly.
- Emphasize the rules from the cases and not the cases themselves.
- Note that you could either quote the statement of the Court or you could transform same into your argument and refer the Court to the citation of the case.
- PROPER REFERENCING OF JUDICIAL AUTHORITIES
This is another important aspect of citing judicial authorities that is frequently overlooked. However, proper citation of judicial authorities would help to ensure, not only that the Court correctly understands what you want it to understand, but that it can also easily access the pages and paragraphs of the law report you refer it to.
Whereas there is no hard and fast rule about referencing judicial authorities, the following are to be considered in referencing judicial authorities:
The style of using footnotes in legal arguments is not very popular in Nigeria. However, it is advisable to adopt such style as it helps to make the legal brief more readable and comprehensible. Putting citations in the body of your brief clutters the text, slows the reader, and hampers the writer’s ability to construct a coherent paragraph. To use the footnoting method, you should state the name of the case and banish the rest of the references to the footnotes section.
- PROPER QUOTATION:
Mark P. Painter rightly stated that quotations should be used sparingly and should not be lengthy in order to improve readability. Also ensure that quotations are used only as support material to your own reasoning. Thus you must first have something to say, which you now support with a well-chosen quotation from a judicial authority. Again, when you quote, you must either quote exactly as stated by the Judge or show any changes you have made by using brackets and ellipses. It is preferable to use indentation for all quotations.
- ADOPT PINPOINT REFERENCING STYLE
This is simply a citation containing details as to the precise page and paragraph you are referring to or quoting from. It helps to simplify the judge’s task and lends credence to your legal argument.
As earlier noted, the importance of proper citation of judicial authorities in legal arguments cannot be overemphasised. However, it is believed that the contents of this paper, if properly studied and applied, would be useful in imbibing the culture of proper citation of judicial authorities in legal practitioners, and ultimately contribute to improving the standard of legal practice amongst Legal Practitioners in Nigeria.
 (2016) LPELR-40207
 (1962) 2 ALL NLR 581 AT 589
 Chinua Asuzu, ‘Brief-Writing Masterclass’ Michael Igweobi, Grafix Direction Services, 2017 @ 346
 B. A. Garner, The Winning Brief: 100 Tips for persuasive Briefing in Trial and Appellate Courts, 3rd ed., OUP, 2014, 629.
 James L. Robertson, ‘Reality on Appeal’, in Priscilla A. Schwab, Appellate Practice Manual, 1992, 95, 126, quoted in Chinua Asuzu, ‘Brief-Writing Masterclass’ Michael Igweobi, Grafix Direction Services, 2017
 Gerald Lebovits, ‘Advancanced Judicial Opinion Writing: A Handbook for New York State Trial and Appellate Courts,’ 7th ed., 2004, 81.
 Chinwa Asuzu @ 356-358
 Mark P. Painter, ’30 Suggestions to improve readability, or How to Write for Judges, Not like Judges’, 21.
 Chinua Asuzu @ 339
 Ibid. @ 358-360