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Master the relative weight of precedents

From a juridical point of view, case authorities are of two sorts: those that are governing (either directly or by implication) and those that are persuasive.

Governing authorities are more significant and should occupy more of your attention. At the appellate level, at least, the decision most important to your case will be those rendered by the very court before which you are appearing. (That is obviously true at the court of large resort, and in intermediate appellate courts it is often the rule that one panel cannot overrule another. The next most important body of governing decisions (the most important at the trial-court level) is that of the court immediately superior to the court before which you are appearing. It is no use arguing at length in a trial court that your point is sustained by a proper reading of a supreme –court opinion, if the immediate appellate court to which an appeal would be taken has already rejected that reading. Of course, when the intermediate appellate court has not spoken on the point, supreme-court opinions will be the most important.

One caveat: even when the governing authority is flatly against you, if you think it is wrong you should say so, lest on appeal you be held to have waived the point. If, for example, you are appearing before a district court bound by a prior court-of-appeals precedent, it is of little use to argue at length that this precedent mistakes the law. Still, you should place in the record your view that it does so. And you should do the same in the intermediate appellate court so that there will be no doubt of your entitlement to raise that issue in the highest court of the jurisdiction.

Among the precedents that are non-governing, there is a hierarchy of persuasiveness that far too many advocates ignore. The most persuasive non-governing case authorities are the dicta of governing courts (quote them, but be sure to identify them as dicta) and the holdings of governing courts in analogous cases. Next are the holdings of courts of appeals coordinate to the court of appeals whose law governs your case; the holdings of trial courts coordinate to your court; finally (and rarely worth pursuing), the holdings of courts inferior to your court and courts of other jurisdictions.

Of the decisions rendered by these various categories of courts, the most persuasive within each category will be those in which the party situated like your client lost in the trial court but won reversal in the appellate court. With this kind of case, the implicit argument to the court is, “Your Honor, if you do what my adversary is asking here, you will be reversed on appeal—just as in this other case I cite.” The next most persuasive decisions will be those in which the party situated like your client won in the trial court, and the appellate court affirmed. The implicit argument to the court is, “Your Honor, if you do what I am asking here, you will be affirmed on appeal—just as in this other case I cite.”

If you’re arguing to an appellate court, decisions of lower courts will almost never be persuasive as authority unless (1) they are numerous and virtually unanimous, or (2) the cited case was written by a judge renowned enough to be named in parentheses after the citation (e.g., Learned Hand, J.). Lengthy discussion of conflicting lower-cut decisions is largely a waste of time. One should say something like this: “The decisions below are in conflict. [Compare …………….. with ……………..] This is a question of first impression for this court. The correct view is that taken by …………….”

Another consideration for citations is freshness. In some rare situations, the older citation will be the better one. A constitutional – law opinion by Joseph Story on circuit, for example, might be more persuasive than a more recent opinion of a federal court of appeals. But at least where opinions of governing courts are concerned, the more recent the citation the better. The judge wants to know whether the judgment you seek will be affirmed by the current court, not whether it would have been affirmed 30 years ago.

When you rely on nothing but persuasive authority, it is more important than ever to say why the rule you’re promoting makes policy sense. For example:

The plaintiff’s being underage tolls the statute of limitations. Though the supreme court has not had occasion to hold to this effect, it clearly expressed that view in (cite) (dictum). Minority is similar to other grounds of disability to which tolling is applied in this jurisdiction. See [cities]. And it is uniformly held to toll the statute in our sister states. [cites] Any other rule would result in unfairness to those unable to protect their own interests. [Etc.]

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