Brief - citing something with parallel reasoning but different underlying issues

[ianrpettus]

What is the name of your state (only U.S. law)? Michigan (applies everywhere)

I'm writing a brief going to an appellate court. While searching for case law, I didn't find any exactly on point. I found some where the underlying case is nothing like mine, but the analysis in the opinion gets somewhat relevant and parallels some of the points I want to make.

Please, please, please, respond on the basis of what to put in the brief, not the actual argument I'm making - or that I should find an attorney.

Example:

In Ross v. Moffitt, the US Supreme Court decided an indigent defendant has the right to counsel in a discretionary appeal, stating:

"Despite the tendency of all rights 'to declare themselves absolute to their logical extreme,'9 there are obviously limits beyond which the equal protection analysis may not be pressed without doing violence to principles recognized in other decisions of this Court. The Fourteenth Amendment 'does not require absolute equality or precisely equal advantages,' San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 24, 93 S.Ct. 1278 1291, 36 L.Ed.2d 16 (1973), nor does it require the State to 'equalize economic conditions.' Griffin v. Illinois, 351 U.S., at 23, 76 S.Ct., at 592 (Frankfurter, J., concurring). It does require that the state appellate system be 'free of unreasoned distinctions,' Rinaldi v. Yeager, 384 U.S. 305, 310, 86 S.Ct. 1497 1500, 16 L.Ed.2d 577 (1966), and that indigents have an adequate opportunity to present their claims fairly within the adversary system. Griffin v. Illinois, supra; Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963). The State cannot adopt procedures which leave an indigent defendant 'entirely cut off from any appeal at all,' by virtue of his indigency, Lane v. Brown, 372 U.S., at 481, 83 S.Ct., at 771, or extend to such indigent defendants merely a 'meaningless ritual' while others in better economic circumstances have a 'meaningful appeal.'"

My case has to do with an indigent party wanting to conduct depositions by videotape in lieu of by stenographer. Both involve indigent parties and equal protection. But, one underlying case has to do with a criminal defendants right to an attorney in a discretionary appeal, and the other has to do with a civil plaintiffs right to make their case.

I want my brief to contain the argument ("MY PARAGRAPH"):

Although there are obviously limits on equal protection, it requires a state's court rules to be free of unreasoned distinctions and that indigents have an adequate opportunity to present their claims fairly within the adversary system. Furthermore, the State cannot adopt procedures which leave an indigent plaintiff entirely cut off from effectively making their case, by virtue of his indigency, or extend to such indigent plaintiffs merely a 'meaningless ritual' to be disposed of by summary judgment due to lack of deposition testimony while others in better economic circumstances have a 'meaningful case'.​

Do I just put MY PARAGRAPH in the brief, modeled after Ross v. Moffitt, but not citing or referencing it?

Do I put in MY PARAGRAPH, also citing Ross v. Moffitt? Do I say it's loosely parallel, although regarding a different underlying issue? (Wouldn't want it to look like I was claiming to cite something that it didn't say.)

Do I quote Ross v. Moffitt, say it isn't directly on point, then put in MY PARAGRAPH that tries to apply the analysis to my case?

 

[quincy]

For background information only, here is ianrpettus' other thread: https://forum.freeadvice.com/civil-litigation-46/trial-judges-reaction-filing-interlocutory-appeal-order-not-disposition-602239.html

ianrpettus, what you are asking the volunteers on this site to do seems to go a bit beyond the scope of this or any forum.

Most of the volunteers on this site are not attorneys and cannot help you draft your brief. That would be practicing law without a license. Those on this site who are attorneys would be violating professional codes.


(with that said, you can wait to see if anyone jumps in to help anyway )

 

[ianrpettus]

For background information only, here is ianrpettus' other thread: https://forum.freeadvice.com/civil-litigation-46/trial-judges-reaction-filing-interlocutory-appeal-order-not-disposition-602239.html

ianrpettus, what you are asking the volunteers on this site to do seems to go a bit beyond the scope of this or any forum.

Most of the volunteers on this site are not attorneys and cannot help you draft your brief. That would be practicing law without a license. Those on this site who are attorneys would be violating professional codes.


(with that said, you can wait to see if anyone jumps in to help anyway )

I definitely understand your points. I quoted a case and provided what I want to write as an example only to show the situation. I don't need a response based on how to word my argument, or anything pertaining to my case or even equal protection. Just looking for a response on how, generically, to handle a situation of making a point when you have case law loosely on topic but with a very different underlying case.

So, I hope someone jumps in anyway, even if on purely an academical and curiosity basis rather than a practicing basis or advice how to write the brief basis.

Or, even referencing a good book to me. I purchased "The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts", which is great, but focuses more on things that would be applicable to general writing style than I would like. (I know you can't learn brief writing out of a simple book, but just looking for any help I can find.)

 

[quincy]

I definitely understand your points. I quoted a case and provided what I want to write as an example only to show the situation. I don't need a response based on how to word my argument, or anything pertaining to my case or even equal protection. Just looking for a response on how, generically, to handle a situation of making a point when you have case law loosely on topic but with a very different underlying case.

So, I hope someone jumps in anyway, even if on purely an academical and curiosity basis rather than a practicing basis or advice how to write the brief basis.

Or, even referencing a good book to me. I purchased "The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts", which is great, but focuses more on things that would be applicable to general writing style than I would like. (I know you can't learn brief writing out of a simple book, but just looking for any help I can find.)

I am going to include a link to the Michigan Bar site, with information for you to read on what (at least in Michigan) one who is not an attorney is allowed to do to help you. State laws vary on what exactly practicing law without a license is - some are stricter than others, and penalties vary.

I really recommend you seek help from a legal aid clinic in Michigan. There are several and some very good ones are connected to the law schools.

And stand by for book recommendations.

The link: http://www.michbar.org/professional/pdfs/UPLfacts.pdf

Good luck.

 

[Paul84]

I definitely understand your points. I quoted a case and provided what I want to write as an example only to show the situation. I don't need a response based on how to word my argument, or anything pertaining to my case or even equal protection. Just looking for a response on how, generically, to handle a situation of making a point when you have case law loosely on topic but with a very different underlying case.

So, I hope someone jumps in anyway, even if on purely an academical and curiosity basis rather than a practicing basis or advice how to write the brief basis.

Or, even referencing a good book to me. I purchased "The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts", which is great, but focuses more on things that would be applicable to general writing style than I would like. (I know you can't learn brief writing out of a simple book, but just looking for any help I can find.)

Ian,
I am not an attorney but have taught persuasive writing--a skill that I have used in writing briefs in my own pro-se case. The five elements of persuasive writing apply as much to legal writing as to any other setting where you make an argument to convince your readers: cite (1) examples, (2) facts, and (3) authoritative sources; (4) answer any potential opposition; and (5) discuss consequences. As for style, (re-)read "Elements of Style" by White and Strunk (http://www.cs.vu.nl/~jms/doc/elos.pdf). Now you're good to go.