I always know my adversary has run out of creative arguments when they throw in one of the weakest attacks: that a case I cited is too old.

This happened to me recently as I was writing an appeal in the Second Department (which is an intermediate appeal level court in New York). In my opening brief I cited a case from the 1970s to support a legal doctrine–establishing fraud through a material omission–that is pretty well-settled but not discussed in detail so frequently. I liked the case because the facts were similar and it was from the Court of Appeals–the highest level of precedence in New York.

My opponent tried (albeit badly) to distinguish the case, but he put most emphasis on the fact that it was 40 years old. It was obviously a weak attack. But it got me to thinking...when is a case too old to cite in support of my argument?

I did a little research on this question and there is no clear answer.

My favorite legal writing guru–Bryan Garner–says when you are dealing with a governing court (i.e., the court whose decisions are binding on the court to whom you are arguing) the more recent the citation the better. Unless you are citing to a decision written by a well-respected judge on a famous issue, then an old case is rarely the most persuasive one that you could use.

That sounds like good advice to me, and I always look for the most recent case for whatever doctrine I am asserting. But sometimes my research returns a bunch of cases from the 1800s, and I immediately feel uncomfortable.

In general, I don't like to use cases written before the 1900s. They are so hard to read with their meandering style and language that is so flowery it often feels like bad prose. And I have to spend too much time searching for the point; when I do find it I have to translate it into modern speak before I can talk about it in my brief. What can I say? I'm a 21st century lawyer, so I like my legal reasoning clear, concise, and crisp.

I'm also pretty sure that no one–and by no one I mean judges, their law clerks, and even my adversaries–is going to bother reading a pre-1900 case anyway. Who has time for that? For many well-settled doctrines, judges know the law off the top of their head and a citation from the 1850s is nothing more than an unnecessary point that I was able to find a case stating the doctrine. It takes more skill than that to win an argument.

So what do I do when all I can find are dusty opinions from the last two centuries?

Here's a system I came up with to streamline my research and make a decision about if and when I should cite an old (i.e., 1800s-1970s) case:

If the case is really old (i.e., pre-1900), I check my research again–is it possible that a doctrine of law I am dealing with in 2015 has not been dealt with since 1855? Not likely.
If I still find only old cases, I will check a treatise or other respected secondary source. If those sources cite the old case as the seminal decision for a doctrine, I will consider using it.
Before I use it, though, I will think about whether I can state the doctrine without citing a case at all. For example, judges (and adversaries) already know that summary judgment is warranted where there is no question of fact to be decided by the trier of fact. So there is no need to cite a case stating it.
If I conclude a citation is necessary, then I will research whether the old case I am eyeing has been superseded by a statute. NOTE: be careful with this one! Many cases appear to be good law until you read them carefully. The older the case, the more problematic this is. For example, any case dealing with bankruptcy that is older than 1978 has to be analyzed in light of the intervening bankruptcy acts. The proliferation of statutes since the 1970s makes this true for many other doctrines as well. And Lexis/Westlaw indicators don't always take those statutes into account when they make their colored flag labels for a case.
Finally, I will look to see if the doctrine in the old case has been dealt with extensively in the lower level courts. If it has, then I might be satisfied that the old case is worth citing as the seminal case in the higher level court, along with a discussion of the lower level court cases that have applied it.

You'll notice I didn't say I would certainly use the case. After all, the final decision of when to cite an old case comes down to my intuition–and my creative flair in the art of argument. You will have to make that decision on your own too–it's part of cultivating good lawyerly judgment.

I would also love to hear from you: what do you think about when deciding if a case is too old to cite?

Tell me your tips and tricks in the comment section, so we can all benefit from them.

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