Distinguishing Opposing Precedent in One Fell Swoop.
Posted on October 16, 2013
One of the hardest things in writing an appellate brief is responding to the case law precedent used by the opposing party. In the best of worlds you would be able to spend the entirety of your brief making your points, discussing the case law favorable to your argument, and not having to spend time and pages responding to your opponent’s discussion of case law. In this best of all worlds you could distinguish your opponent’s case law precedent to irrelevance in one fell swoop.
Distinguishing case law precedent as a group with but a few words instead of doing so individually over many pages isn’t a technique that can be used often, but when appropriate it can be devastatingly effective. I’ve always thought that by parsing the painstaking details of an opponent’s cases only helped lend credibility to the argument the opponent built around them. Certainly it does not help your client if you have to struggle to distinguish adverse case law.
Again, in the perfect world it is better to distinguish your opponents’s case law quickly and spend your brief on your own cases and argument. But how does one go about doing that? It’s done by viewing that case law as a whole and finding a weakness in the body of cases. In the famous case of Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), the lawyers for the NAACP included the following concise argument, which effectively distinguished the cases cited by the Board’s brief to the Supreme Court:
These infant appellants are asserting the most important secular claims that can be put forward by children, their claim to the full measure of their chance to learn and grow, and the inseparably connected but even more important claim to be treated as entire citizens of the society into which they have been born. We have discovered no case in which such rights , once established, have been postponed by a cautious calculation of conveniences. The nuisance cases, the sewage cases, the cases of the overhanging cornices need not be distinguished. They distinguish themselves.
In a recent appeal brief involving a question of first impression in Alabama regarding application of a particular statute, I used a somewhat different approach to distinguish the abundant case law cited by the opposing party, who had provided the appellate court with a jurisdictional survey of how other states had applied very similar statutes. Given that the jurisdictional survey heavily favored the opposing party, in order to win the appeal I needed to shift the appellate court’s focus from weighing the case law to the public policy argument being made in favor of the appellant. I did so using the following paragraph:
However, this Court is not interpreting and applying the statutory provisions of those other states, but answering an apparent question of first impression of Alabama law in interpreting [the Alabama statute]. The opinions cited and discussed at length by [the Appellee] are thus not binding on this Court. Nor are the cases from other jurisdictions that [the Appellant] cited in her first brief to this Court. This Court is not asked to decide a question of another state’s law, but to apply the Alabama statute consistent with this State’s public policy.
Finally, is his book on appellate brief writing, Point Made, Ross Guberman provides several examples from briefs written by great appellate lawyers where opposing case law was distinguished in one fell swoop. In the following example, the brief writer seized upon a similarity among his opponent’s cases and used it distinguish them to irrelevance in just three sentences.
The cases on which the Government relies are distinguishable from this case because they all involved a second search pursuant to a valid warrant, and that second search was independent of the illegal initial search. In this case there was but one entry and it was illegal. The officers seized the evidence in question directly following that illegal entry.
Perhaps a timid or inexperienced appellate lawyer would not limit his or her response to the opposing party’s case law to just a few sentences or even a few paragraphs. One might think it’s “safer” to address and distinguish each case individually and in greater detail. But consider whether showing such concern over cases you are arguing are unimportant actually strengthens the appearance of the opponent’s case law rather than weakens it. Instead, where there is an identifiable commonality among those cases, consider these examples and distinguish them in one fell swoop.
If you feel you may need help with writing an appellate brief, or just have a question about appellate practice, feel free to contact me through the web site for my freelance legal writing service, Appeals and Briefs by Michael Skotnicki, Esq., found either through clicking the logo on this page or via this link, www.appealsandbriefs.com.