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Appellate Advocacy and Citing Authority in Briefs and Oral Argument: Advanced Issues

Special Justifications for Not Following a Higher Court, Citing a Lower Court Persuasively, Art of Analogy

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Tuesday, November 30, 2021

Recorded event now available

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This CLE webinar will guide appellate lawyers to refine authority's compelling and persuasive deployment in briefs and oral arguments and review why authority should be handled differently in these separate settings. The panel will discuss resisting the "more is better" trap, recognizing when the decisions of a higher court may be taken at less than face value, and avoiding the fatal flaws of hyperbole and inaccuracy. The program will help lawyers evaluate the persuasiveness of existing decisions and address noncase materials.


Selecting and then persuasively citing authority in appeals is much more complex and nuanced than it appears to be. To know which cases to cite and what arguments to make, counsel must understand the law of judicial precedent well beyond the simple platitude that higher courts govern lower ones. Astute appellate lawyers must be aware that at every level, special justifications may exist for not following a higher court, even the U.S. Supreme Court.

Counsel must also know when and how to cite a lower court persuasively to a higher and how to use state law decisions in federal court. Since the true "case in point" is rare, counsel must master the skill of persuasive analogy, which requires training and creativity to avoid overstating the comparison. Counsel should also know how to handle noncase law materials artfully.

The rules for persuasive use of authority in briefs differ from when addressing authority in oral argument. Zealous and enthusiastic counsel must learn how to not over-cite and overanalyze decisions in this setting. The standard of review the court will apply to the case is often the determining factor in resolving the appeal, so counsel should consider how to focus the brief on this.

Listen as this distinguished panel of appellate practitioners leads attorneys through the finer points of citing authority in appellate briefs and oral arguments.



  1. The law of judicial precedent
  2. Citing authority in briefs
  3. Number of citations
    1. Use of quotations
    2. How to effectively use specific types of authorities
    3. The case in point
    4. The use of analogies
    5. Handling negative authorities
    6. Non-decisional authorities
  4. How citing authority in oral argument differs from briefing
  5. Fatal Errors
    1. Inaccuracy
    2. Hyperbole/overstating


The panel will review these and other critical issues:

  • What loses the court's attention faster than anything else?
  • What do experienced appellate lawyers avoid at all costs in writing and oral argument?
  • How can "writing to the standard" give counsel an edge?
  • When may binding precedent be not binding, and what are the signs?


Shatz, Benjamin
Benjamin G. Shatz

Partner & Certified Appellate Specialist
Manatt Phelps & Phillips

Mr. Shatz Co-Chairs Manatt's Appellate Practice Group. He has briefed hundreds of civil appeals, writs, and...  |  Read More

Cooney, Mark
Mark Cooney

Western Michigan University Cooley Law School

Prof. Cooney has taught Research & Writing and Advocacy for 16 years. Before teaching, he spent 10 years in private...  |  Read More

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