I recently had a hearing, and the judge asked both sides to submit follow-up briefs. The judge told me to research case law on a particular issue and include it in my brief.

My supervisor told me the case law didn’t exist (she was right) and not to discuss that issue in our brief, so we didn’t. We briefed on other issues that came up during the hearing. When we go back for a hearing, and the judge asks me why I didn’t brief the issue he ordered, what should I say?

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Just my thoughts: there is no such thing as case law doesn’t exist. There must be analogous cases, statutes, even in other jurisdictions that may be persuasive. For instance, CA is no fault & you can’t sue a relative or lover for interfering with the marital contract. However, other states permit this. If I were in a CA court, and was told to brief the issue I would say something like “your honor, while CA does not recognize such law, the following states do. In addition, while CA Does not permit such claims, in this district, an appealed court upheld a somewhat analogous case I’ll be it on different facts that may elucidate the issues at hand.

If the cord is telling you to research a particular issue, they want you to go above and beyond and address it head on. It is the very rare case, that I would ignore a quart instruction, even if you or your supervisor thought it was a waste of time .

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