The Case That Was Reversed
Attorney Duval tells paralegal Kenji: 'I remember a 2015 appellate case, Trenton v. Barlow, holding that a landowner owes no duty to warn a licensee about an open and obvious hazard. Find it and put it in the memo - we file Monday at 9:00 a.m.' Kenji finds the case. The quoted language appears in a footnote. Kenji's citator shows a red flag: in 2017 the state supreme court reversed the judgment, and the reversal specifically rejected that footnote, holding that the open-and-obvious doctrine does not protect a landowner against a known, frequent trespasser. Two later appellate decisions describe Trenton as 'superseded.' Kenji's printout is due to the attorney in two hours, and the memo already cites Trenton twice in the argument section.
1. How should Kenji handle the Trenton citation in the memo?
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The governing principle - A case reversed on the very point for which it is cited is not authority. The fact that the proposition appeared in a footnote does not help; the supreme court rejected that footnote, so the proposition is dead in that jurisdiction.
Options and why most of them fail
- Cite it as if valid - this misleads the tribunal. Rule 3.3(a)(1) forbids false statements of law, and Rule 3.3(a)(2) requires disclosure of directly adverse controlling authority that opposing counsel has not disclosed. Here the problem is worse than a mistake; Kenji would be participating knowingly.
- Delete the citations and say nothing - still wrong. The attorney will file believing the case is good, and the firm has no defense if the court or opposing counsel finds the 2017 reversal.
- Cite it with honest subsequent history - a red-flag or overruled signal with a parenthetical noting the reversal - is legitimate only if the memo also explains that the proposition can no longer be relied on. Citation form alone does not resurrect a dead holding.
Before the attorney decides - Kenji should read the 2017 opinion and both 'superseded' cases in full. He needs to know whether anything in Trenton survives (for example, a general negligence discussion) and whether different authority now supplies the rule the attorney wanted.
2. How and when should Kenji raise the problem with the attorney, and what if the attorney says to cite the case anyway?
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How to raise it
- Immediately, in writing - not at 8:55 Monday morning. A short email: the citation, the pin cite, the 2017 reversal quote, and the two cases calling it superseded.
- Come with a replacement. Either the best current authority in the jurisdiction, or a clear statement that the argument cannot be supported plus a suggested alternative theory.
- Separate the two questions: whether the memo can be filed on time without the case, and whether the case can be used honestly. Do not let the filing deadline decide the ethics question.
If the attorney insists - Kenji should decline to prepare a citation that presents overruled authority as good law, document the request and his objection, and escalate to the supervising partner. Rule 5.3 makes the firm responsible for the paralegal's work, but it does not require the paralegal to participate in a misrepresentation to a court.
Practice point - This is why citation checking belongs before drafting, not after. Kenji should also check whether the memo cites any other pre-2017 case that relied on Trenton, because pulling one citation from a bad line of cases often pulls several.
3. What further research and drafting steps should follow?
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Additional research
- Pull the full subsequent history of Trenton: the supreme court opinion, the mandate, and any opinion on remand. Record exact page and footnote numbers for the pin cites.
- Read the two 'superseded' decisions to see whether they describe the holding as overruled entirely or only as to certain categories of plaintiffs. That distinction may leave a narrow argument open.
- Search for the current controlling rule using the supreme court's own language as search terms, then confirm the formulation against a secondary source such as a state treatise or the pattern jury instructions.
- Run a citator on every other case in the memo. A memo that relied on Trenton may have inherited other citations from the same line.
Writing - State the rule from current authority first. Then, if the attorney wants it, add a short 'contrary or overruled authority' note explaining what Trenton said and why it no longer applies. That framing is honest, and it is also stronger advocacy: it shows the court that the firm knows the history and has a reason to distinguish it, rather than hoping nobody checks.