IMLA Appellate Practice Blog - February 23, 2014

Don’t assume that an argument should be discarded because it is supported only by an old case. For example, plaintiffs relied on Stevens v. Los Angeles Dock & Terminal Co., 20 Cal.App.743 (2d Dist. 1912), and defendant  More-Gas first noted that Stevens is “’a 100 year old case that has never been cited by another California case.’” The court in McGuire v. More-Gas Investments, LLC, 220 Cal.App.4th 512, 526 (3d Dist. 2013), responded:

That fact is of no significance. While it is true Stevens has never been cited by any published appellate decision in California, that does not undercut the validity of the reasoning in the case. Indeed, the principle applied in Stevens is well known in the common law, including here in California. An appellate court in New York that cited Stevens over 70 years ago succinctly articulated that principle as follows:

As McGuire illustrates, age of a compelling case is not necessarily a matter of consequence.  What are some ways to show why the case is compelling when it has never been cited by another California court?

Other California cases may have reached the decision without citing the case.  Use the headnotes and digest to locate them most easily.

• Courts in other states may have cited the case.  Shepardizing or keyciting will produce this information, and you may want to do both as different results can occur.
• If there is a headnote or keynote number for the point decided in the case, use the regional digests or the decennial digest to locate other decisions on the point.  For more on digests, see, e.g., http://lawlibguides.byu.edu/content.php?pid=225319&sid=1961818, http://www.law.georgetown.edu/library/research/guides/digests.cfm
• Is the case cited in significant treatises or in A.L.R. Annotations or elsewhere in respected legal materials?  Their reliance on it bolsters its value and is independent argument for the point.
• Is there an analogy that opens the door to other cases?  This may be the only case on the point in a mining context, but the same rule may apply in agriculture.

Use your imagination.  If you give up because the case is 100 years old, then it may be over.  If so, the reason may be that you didn’t try hard enough, not that you deserved to lose.

* This blog post was originally published in IMLA Appellate Practice Blog, February 23, 2015. Republished with permission. Visit www.imla.org/blog to read additional IMLA Appellate Practice Blog posts.