Your introductory research and writing class probably taught you that constitutions, statutes, and binding caselaw are primary authority. Those should be the basis of any appellate brief.

But is it okay to cite secondary authority? The Supreme Court of North Carolina has “recognize[d] the need of appellate court judges to rely on secondary authority in certain cases in order to determine the appropriate result.” State v. Gardner, 316 N.C. 605, 612, 342 S.E.2d 872, 877 (1986). Thus, our courts will occasionally look to secondary sources in support of their decisions. See, e.g., Warren v. N.C. Dep’t of Crime Control & Pub. Safety, 221 N.C. App. 376, 381-82, 726 S.E.2d 920, 925 (2010) (relying on secondary sources that had been cited by the U.S. Supreme Court). Still, overemphasis on secondary authority is not encouraged. See, e.g., State v. Mathis, 349 N.C. 503, 517, 509 S.E.2d 155, 163-64 (1998) (Frye, J., concurring in part and dissenting in part) (criticizing the majority for “citing only secondary authority”). So how do you decide?

An analysis of the Supreme Court’s recent batch of opinions may provide some guidance. In Irving v. Charlotte-Mecklenburg Board of Education, for example, the Court repeatedly cited to a state agency’s manual to aid the Court’s interpretation of a statute. In State v. Williams, the dissenting opinion cited a report from the U.S. Department of Justice. And in State ex rel. McCrory v. Berger, a constitutional case regarding the governor’s appointment power, both the majority and the concurring/dissenting opinions cited secondary sources. Of course, scholars have repeatedly addressed this issue with respect to the U.S. Supreme Court. See, e.g., Brent E. Newton, Law Review Scholarship in the Eyes of the Twenty-First Century Supreme Court Justices: An Empirical Analysis, 4 DREXEL L. REV. 399 (2012).

In light of the appellate courts’ liberal use of secondary authority when necessary and appropriate, it follows that appellate practitioners should not be too afraid of citing secondary legal authority in their briefs, whether that be opinions from other jurisdictions, reports from state agencies, or law review articles. Briefs should certainly contain primary authority to the extent possible, but additional material may also help the court in its analysis.