The Writer’s Corner:
Making Policy Arguments III
By Kenneth R. Swift

One of the most exciting, and important, arguments a lawyer makes is for or against a significant addition to or change in the law.  Whether the issue be the adoption of a new cause of action or legal theory or a significant extension or alteration of existing law, the arguments the attorney makes will have a significant impact on the law and, correspondingly, on society.

While obtaining reversal of an established precedent or expansion or limitation of existing law is not easy, sometimes the facts of a client’s case or justice itself necessitate making these arguments.  Minnesota has a longstanding tradition of openness to changes in the law and our Supreme Court has explicitly rejected the notion that only the Legislature may create a new cause of action.1 Speaking more broadly, the Court has stated:

Ask the Key Questions

The attorney preparing such an argument needs first to ask and answer two key questions:

Asking and answering these questions will help break down the argument on terms that anticipate the court’s analysis of the policy implications of the decision.

One good example of how a court will break down the policy implications of a decision can be found in the well-written opinion of Justice John Simonett in Erickson v. Curtis Inv. Co. 3 The issue was whether a parking ramp owner could be held liable for an attack by a third party on one of the ramp patrons.  In determining whether to make a significant addition to Minnesota law, the Minnesota Supreme Court first noted that adding such a duty was a question of policy.4 The Court then went on to review three specific policy concerns before ultimately deciding that a parking ramp owner has a duty to use reasonable care to deter criminal activity on its premises that may cause personal harm to customers.5

State Your Proposed Rule

One key to arguing what the law should be is to state your proposed new rule clearly and explicitly. Too often attorneys will simply launch into an analysis of and arguments for a new rule without ever making explicit what language they are asking the court to adopt.6 This step is important both for the argument itself and for the attorney writing it.  The court will find it much easier to follow an explicitly stated argument and the attorney, by making the effort to be completely clear about the rule or extension being sought, will find it easier to demonstrate how the sources cited support the argument and why the rule should be adopted.

Look for Support

Since an argument for change or extension of existing law implicitly raises issues of first impression, there obviously will not be binding law on which to base the arguments. In that situation, however, it is all the more critical that the attorney find support for the policy arguments. Identify as many sources as possible that are consistent with your argument regarding what the law should be and make these sources part of your brief to the court.  There are many places to look for support for your argument, including previous decisions from the home jurisdiction, case law from other jurisdictions, and treatises and law reviews. 

A court will usually start its analysis by looking at some of its own previous decisions (and/or those of a higher court in its jurisdiction) that address issues at least somewhat similar to the issue involved. (For example, in Curtis, the Supreme Court began by reviewing some of the previous decisions dealing with innkeepers and common carriers.7)  Therefore, a very effective way to support and develop your policy arguments as to what the law should be is to show how it emanates from the existing law.  The court will want to remain as consistent as possible with its previous decisions. Analysis of such precedents should proceed through determining the purpose of the underlying law and articulating how the proposed decision is consistent with that purpose.  A similar analysis was described in detail in my earlier article on making policy arguments from established legal principles.8

One of the most common places that courts turn when faced with a decision on a new cause of action or legal theory is cases from other jurisdictions, including both the majority and minority opinions.9  Treatises and law reviews are another key resource; nowhere in the law are these more relied upon by the courts than in determining what the law should be. These sources can also be very useful in phrasing and developing step one of your analysis, which is to explicitly state the proposed rule.10

It Comes Down to the Attorney

Ultimately, the policy arguments in these types of cases are dependent upon the attorney.  Nowhere else in the law is the attorney’s own intellect and creativity more useful than in arguing what the law should be.  While any argument as to what the law should be is more effective if there is some support to which the attorney can cite, be it a persuasive case, treatise, or law review, the attorney should not be afraid to propose and argue new concepts and provide analysis as to why a certain course of action is best for society.  For example, in Curtis, two of the policy considerations the Court considered and mentioned prominently in its opinion came directly from the attorneys involved (although ultimately they were not fully successful).11

Opportunities to have significant impact on the direction of the law are rare for most attorneys.  Following the principles above to propose a clear rule for the court to adopt and to support that rule provide a solid structure for the attorney to take advantage of the opportunity. c

NOTES
1. Lake v. Wal-Mart Stores, Inc. 582 N.W.2d 231, 235 (Minn.1998).

2. Tuttle v. Buck, 119 N.W. 946, 947 (Minn. 1909); Lake, 582 N.W.2d at 234.

3. Erickson v. Curtis Inv. Co., 447 N.W.2d 165 (Minn. 1989).

4. Id. at 169.

5. Id. at 169-170.

6. Much of this section of the article is phrased in terms of the party moving for the change in the law; oftentimes the opposing attorney will simply be arguing for the status quo (which should also be made clear).

7. Erickson, 447 N.W.2d at 168.

8. Swift, “The Writer’s Corner: Making Policy Arguments II,” Bench & Bar of Minnesota 62:3 (March 2005), p. 34.

9. See e.g., Wojciak v. Northern Package Corp., 310 N.W.2d 675 (Minn. 1981).

10. See e.g. Lake, 582 N.W.2d at 233 (Relying upon the Restatements for the phrasing of the four proposed privacy torts).

11. Erickson, 447 N.W.2d at 169.

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KENNETH R. SWIFT is an attorney and serves as an instructor in legal research and writing at Hamline University School of Law.