Posture Mismatch Taxonomy

The framework

Every holding is announced under a standard: a test applied to a defined body of material, with the burden placed on a particular party, in a particular forum. Detached from that standard, a holding does not become a more general rule. It becomes a different proposition, one the deciding court never decided.

Citators do not report this. A citator answers a question about subsequent history. It does not answer a question about fit. A summary judgment opinion cited in a motion to dismiss shows no negative treatment, because nothing in its later history has changed. The flag is green and the citation is still wrong. The question is therefore not whether a case is good law, but whether the proposition survives translation into the standard the motion invokes.

Definition. A citation exhibits posture mismatch when the proposition it is offered for depends on a procedural standard, record, burden allocation or forum different from those governing the motion in which it is cited.

The four kinds.

1. Standard mismatch. Dispositive motions ask different questions. A Rule 12(b)(6) motion asks whether factual allegations, accepted as true, state a plausible claim. A summary judgment motion asks whether there is a genuine dispute of material fact. A court that grants summary judgment because no reasonable jury could find causation has not held that causation was inadequately pleaded.
2. Record mismatch. Standard concerns the test; record concerns the material. A motion under Rule 12(b)(6) is confined to the pleadings, and Rule 12(d) converts it into a summary judgment motion if outside matters are considered. A case saying the plaintiff "offered no evidence" describes a record; cited at the pleading stage, it invites the court to weigh an absence of evidence no party has yet been required to produce.
3. Burden mismatch. Burdens differ by forum even at the same nominal stage. Under Celotex, a federal movant without the trial burden may point to an absence of evidence; under Adickes, a movant with the trial burden must establish the element affirmatively. California's Aguilar allows a defendant to show the plaintiff cannot reasonably obtain needed evidence, but requires evidence to that effect. A California motion resting on the federal pointing-out route misstates the burden even if every citation is accurate.
4. Forum mismatch. Twombly and Iqbal construe Federal Rule 8(a)(2); they do not govern state pleading. California is a fact-pleading jurisdiction, and a demurrer arguing "plausibility" imports a foreign test. The mismatch runs both ways: Twombly retired the Conley "no set of facts" formulation for federal purposes, but several state courts of last resort, Washington's among them, kept their traditional standards. Currency is a property of a proposition relative to a forum.

The carry-across rule. Propositions independent of the record and the standard usually carry across stages: element definitions, substantive rules of law, and questions of statutory or contractual construction decided as a matter of law. Sufficiency holdings do not carry: "plaintiff offered no evidence of knowledge" describes a record, and "the complaint does not allege reliance" describes a pleading. Between them sits the intermediate case, a holding phrased as sufficiency that rests on a rule of law (a kind of fact that cannot establish an element even if proven). It carries, provided it is cited for the rule and not for the record.

The rule reduces to one question:

Would the proposition remain true if the record were different? If it would, the proposition is a rule and may travel. If not, it is an application and must stay where it was decided.

The pre-filing test. Each cited proposition in a dispositive motion is tested against four questions:

1. Standard: was it decided under the standard this motion invokes, or is it cited only for a rule independent of that standard?
2. Record: does it describe what a record contained, and may this court consider a record now?
3. Burden: does it assume a burden allocation different from this forum's at this stage?
4. Forum: is the governing standard stated from authority applying it in this court?

How to apply it

The following is an illustrative hypothetical based on the scenario the working draft uses.

A defendant moves to dismiss a negligence claim in federal court. Every authority exists, every quotation is accurate, every page supports the sentence attached to it. The central paragraph argues that the plaintiff "has offered no evidence that the defendant had notice of the hazard," citing three appellate decisions that say exactly that. A citation checker passes the brief.

Run the four questions on each of the three citations:

• Standard. All three affirmed summary judgment. They were decided under the genuine-dispute test, not plausibility. Fail, unless cited for a rule.
• Record. "Offered no evidence" describes a record. The motion is confined to the pleadings. Fail.
• Burden. At the pleading stage no evidence is required of the plaintiff at all. Fail.
• Forum. The standard paragraph cites the federal plausibility cases for a federal motion. Pass.

Now apply the carry-across rule. One of the three opinions states the elements of the negligence claim with care. That sentence would remain true on any record, so it may stay, cited for the elements. The notice analysis may not. The repaired paragraph states the elements from the summary judgment opinion, states the pleading standard from forum authority applying it, and argues that the complaint's allegations of notice are conclusory, supported by pleading-stage authority.

Change one fact: the same case is filed in California superior court and attacked by demurrer. The forum question now fails for the federal plausibility cases, because California tests whether the complaint states facts sufficient to constitute a cause of action. If the case later reaches summary judgment in state court, the burden question fails for any passage built on the federal pointing-out route, because Aguilar requires evidence even for a no-evidence showing.

Known limitations and critiques

Stage belongs to a holding, not an opinion. One opinion can dismiss one count and grant summary judgment on another; an appellate opinion can review both. Labeling whole opinions by stage mislabels one of the holdings.

Hybrid postures resist clean labels. Judgment on the pleadings, factual attacks on jurisdiction where the court may weigh evidence, prima facie showings on affidavits, Rule 12(d) conversions and preliminary injunction standards all sit awkwardly in a two-stage picture. The taxonomy names the failure; it does not settle every classification.

A crude filter fails both ways. "Do not cite summary judgment cases" excludes element definitions such opinions state with care, and admits a motion-to-dismiss case from a forum applying a different pleading standard. The carry-across rule is harder to apply than a filter because it requires judgment on the intermediate case.

Earlier schemes differ. The working draft named three forms (stage, era and forum mismatch). This version folds era mismatch into standard and forum and adds record and burden as separate kinds. Readers comparing drafts should expect that shift.

Unmeasured prevalence. The working draft proposes a posture mismatch rate and a "verified-but-unusable" rate, but no study has been run, and no figure should be attributed to the framework.

One filter among several. Jurisdiction, treatment and direction matter as much. Posture was chosen because lawyers recognize it on sight and it is the most checkable part of applicability; see the Proposition-Usability Model.