by E. Scott Fruehwald
Here is a question I've never thought about before: Are lawyers citing the best cases to courts? In other words, do the courts use the cases cited in the briefs, and how often do the courts use cases not mentioned in any brief? The answer may surprise you!
Kevin Bennardo & Alexa Chew (UNC), Citation Stickiness.
"This Article is an empirical study of what we call citation stickiness. A citation is sticky if it appears in one of the parties’ briefs and then again in the court’s opinion. Imagine that the parties use their briefs to toss citations in the court’s direction. Some of those citations stick and appear in the opinion — these are the sticky citations. Some of those citations don’t stick and are unmentioned by the court — these are the unsticky ones. Finally, some sources were never mentioned by the parties yet appear in the court’s opinion. These authorities are endogenous — they spring from the internal workings of the court itself.
In a perfect adversarial world, the percentage of sticky citations in courts’ opinions would be something approaching 100%. The parties would discuss the relevant authorities in their briefs, and the court would rely on the same authorities in its decision-making. Spoiler alert: our adversarial world is imperfect. Endogenous citations abound in judicial opinions and parties’ briefs are brimming with unsticky citations.
So we crunched the numbers. We analyzed 325 cases in the federal courts of appeals. Of the 7552 cases cited in those opinions, more than half were never mentioned in the parties’ briefs. But there’s more — in the Article, you’ll learn how many of the 23,479 cases cited in the parties’ briefs were sticky and how many were unsticky. You’ll see the stickiness data sliced and diced in numerous ways: by circuit, by case topic, by an assortment of characteristics of the authoring judge. Read on!"
Let me repeat the key point in the abstract: "We analyzed 325 cases in the federal courts of appeals. Of the 7552 cases cited in those opinions, more than half were never mentioned in the parties’ briefs." This is astounding. It raises the question of why lawyers aren't doing a better job of citing the essential cases to the court. And there's more: "In our 325-case data set, the parties cited 23,479 cases. Of those, only 16% were later cited by the courts in their opinions—or to use our nomenclature, only 16% of the cases cited in the briefs were sticky."