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Understand the hierarchy of legal authority.
Not all citations are equally likely to persuade judges.
Rule statements and other legal propositions should normally be accompanied by citations to a source of law such as a statute or case. But not all authorities are equally strong. To understand what arguments judges are likely to find persuasive, litigators must remain alert to where the sources they cite fall on the hierarchy of legal authority.
Here is a rough hierarchy:
1. Binding in-jurisdiction cases decided by the jurisdiction’s highest court
2. The language of an applicable and enforceable contract
3. The language of an applicable statute
4. Binding in-jurisdiction cases decided by intermediate appellate courts
5. Landmark legal treatises or other strong secondary sources1
6. Persuasive but nonbinding federal appellate cases, especially on issues of federal law
7. Persuasive federal district court cases, especially on issues of federal law
8. General legal principles such as maxims of equity2
9. Persuasive appellate cases from other states
10. Other secondary sources such as law review articles
Move down the hierarchy only if you have a reason to do so—because you couldn’t find any binding authority on point, for example, or because a persuasive authority more precisely addresses the issue.
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Example: You can cite a binding authority in support of a general rule statement, then cite persuasive authorities to add helpful details or show why the rule applies.
A common way to defend tricky propositions is to establish a broad rule or framework by citing a case from the highest court in the jurisdiction, then add citations to cases lower in the hierarchy that add helpful details to the rule or are closely analogous to your case. Here’s an example, with citations simplified, from a brief in a copyright case about Google Books; the citations in the second paragraph are to a federal district court case, which is not binding precedent:
The Supreme Court has consistently rejected “bright-line rules” in the fair use context, Campbell v. Acuff-Rose Music, and has noted Congress's recognition that “each case raising the fair use question must be decided on its own facts,” Sony Corp. of Am. v. Universal City Studios, Inc.
This often requires a fine-grained analysis that can lead to different fair use conclusions even about uniform uses of substantially similar works. See, e.g., Cambridge Univ. Press v. Becker (reaching opposite fair use conclusions about 37-page excerpts from two books because one book earned significant digital licensing income and the other did not); id. at *76, *161 (finding use of 41 pages equaling 5.8% of a book fair because the portion was “decidedly small,” but use of a shorter excerpt from a shorter book not fair in part because the excerpt comprised 8.28% of the total work, which the court found “not decidedly small”).
Other tips for deciding which authorities to cite
Rarely cite concurrences, per curiam opinions, or dissents. When you do, you’ll need to add a parenthetical such as “(Smith, J., conc.)” qualifying the authority.
Rarely cite unpublished cases, even if your jurisdiction allows it. And avoid cases with negative subsequent history. Citing a case that has been depublished, vacated, or superseded by statute can seriously damage an attorney’s credibility, so it’s imperative to verify that the cases you cite remain good law. When a case you want to cite was later overruled on other grounds, the case may still be citable (accompanied by a “superseded on other grounds by Smith v. Jones” qualifier), but it’s best to use another source if you can.
Another thing to consider when selecting cases is whether the case could help your opponent. A good opponent will review every significant case you rely on and look for ways to use the case against you. Some cases can be characterized as supporting the opponent’s position; others contain unhelpful language that may show up in the opponent’s next filing. And many cases contain supportive language in their dicta and rule statements but were ultimately decided for the “wrong” side—that is, the side whose position mirrors your opponent’s.
To avoid these pitfalls, you’ll need to read and Shepardize3 the cases you cite. Many attorneys skip those steps, but doing so can be costly.
Ryan McCarl (LinkedIn) is the author of Elegant Legal Writing (U. Cal. Press 2024), a founding partner of Rushing McCarl LLP, and an adjunct professor at LMU Loyola Law School. The Elegant Legal Writing book is now available for preorder. For more writing tips, subscribe for free to the Elegant Legal Writing blog:
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Photo credit: Kari Shea on Unsplash.
The canonical example of a landmark treatise is Charles A. Wright and Arthur R. Miller's Federal Practice and Procedure. Other strong secondary sources include model statutes, such as the Restatement (Second) of Torts, and their accompanying commentary.
Maxims of equity are general legal principles, such as “[One] who consents to an act is not wronged by it.” Cal. Civ. Code § 3515.
“Shepardizing” — which, like “googling,” has made it into the Merriam-Webster dictionary — means checking a citation to ensure that it is still good law and see how it has been cited in later cases. The term comes from Shepard's Citation Service, which is currently maintained by Lexis.