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The Brandeis Brief: over one hundred, and still going strong.

In 1907 Louis Dembitz Brandeis, who would later serve as a justice on the U.S. Supreme Court, was a lawyer with a case before that Court. And he made legal history by filing a brief that did not, like a traditional brief, confine itself to arguing the law, and the facts shown by the evidence admitted in the trial court. His brief contained, in addition, references to books, papers, studies, reports, etc., all of which were offered to prove contested facts. Ever since, a brief of this type has been known as a “Brandeis Brief.”

One recent decision that bears all the marks of having been influenced by a Brandeis Brief is Tracey v. Solesky, 2012 WL 1432263 (Md. Apr. 26, 2012). The Tracey court held that pit bull or “pit bull mix” dogs are so dangerous that a plaintiff attacked by one of these dogs need not prove that the owner was negligent (as, for example, by proving that the dog had already bitten someone). The person who owns or controls the dog, said the Tracey court, “is strictly liable. . . .”

The point about Tracey is not the holding, but the support for the holding. The plaintiff in Tracey did not put on proof that pit bulls are dangerous. He did not, for example, call an expert witness. Rather, the Tracey court based its factual finding about the nature and propensities of these dogs on such things as a “special report” published in the Journal of the American Veterinary Medical Association; “[a]n abstract from a recent article published in the Annals of Surgery”; a weekly report from the Center for Disease control, and even an Editorial Note accompanying that weekly report. In short, all of the proof of the behavior of these types of dogs came from Brandeis sources. At well past the century mark, the Brandeis brief is still going strong.

It should not, however, go without careful scrutiny from opposing counsel. The problem with a Brandeis source is that it is not subject to cross examination. The CDC Editor was, in effect, permitted to testify for the plaintiff in Tracey, without having to defend his opinions. If, because of insufficient training, or bias, or incomplete knowledge, or some other reason, his testimony was misleading, or even just plain wrong, that fact might have been brought out at trial. It is one thing for a brief to bring in relevant background from various Brandeis-type sources, but quite another to use them to prove the fact at issue in the case.

Bob Frey