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

Description

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.