Almost all legal positions that matter to one side in a dispute have contrary law supporting a different legal position. I’ve got some cases on my side and you’ve got some cases on your side. One of the serious mistakes I can make is to focus so greatly on the good cases that I fail to distinguish and destroy your cases that hurt my position. In Coghlan v. Starkey, 852 F.2d 806 (5th Cir. 1988), the court awarded sanctions for frivolous appeal for that mistake. “Here, the appellate brief indicts counsel as having recognized that no authority supports the claim. Not only was there scant discussion of adverse decisions cited by the magistrate, but only two cases were even named in the brief. This is poor appellate practice and an abuse of the appellate process.” Id. at 816 (footnote omitted).
What are some ways to address the cases that hurt?
Be forthright; the cases exist, your opponent is very likely to cite them, and the judge’s clerk will likely find them anyway. How can you make the most benefit out of revealing cases that hurt? Can you show that they just look on first glance that they hurt but really do not hurt when all the relevant information is considered?
The first and preferable option is to distinguish the cases:
- It was decided before a significant change in the law (statutory, case law, regulations) so the rules have changed, making it inapplicable.
- Changes in circumstances no longer justify continued adherence to the decision (look at societal changes such as computers, GPS).
- It addresses a different situation or person so the law or public policy require a different result (it applies to partnerships, not corporations; it applies to private hospitals, not public hospital districts, etc.).
- It was decided when the Attorney General was a party or intervenor, unlike this case in which the Attorney General and other public persons are absent and cannot protect the public interest.
- Other courts and even the court that decided the cases have declined to follow them (especially if the reasons are beneficial to your position).
- It was decided in another jurisdiction which has different laws (don’t just say this, show it with citations to the other laws and explanation why they support your conclusion).
If no possible ground for distinguishing the cases that hurt is available, or if you want to argue that the cases are both distinguishable and wrong, there are several ways to approach the argument:
- The decision failed to take something important into consideration (law, facts, …).
- Its analysis has an inherent flaw in logic that you explain.
- The three judges who decided it have all reached contrary decisions in cases similar to yours, with the effect that they implicitly believe their decision was wrong.
- It is just flat wrong and should not be followed (explaining why, of course).
- It is just flat wrong and should be overruled (explain, but also explain why overruling is required instead of simply allowing the decision to fade into oblivion).
Judges are likely to be much more willing to distinguish a decision than to overrule it. There may also be impediments to overruling a decision—is an en banc hearing required?