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Reading is difficult. As a writer, I help the reader every way I can think of. As a reader, I work hard not to miss the big things in the middle of the road.

Friday, August 6, 2010

Know What the Good Persuasive Authority Is Where You Are

One way to tell a good appellate practitioner from a beginning is to find out what persuasive authority is most impressive to a particular court. Courts are supposed to be bound by the decisions of higher courts. They are supposed to either follow their own precedents or to explicitly overrule them. I propose to discuss the gap between theory and practice in later posts. Today, though, my subject is the idiosyncratic preferences of judges and courts for "extra" proof.
U.S. Supreme Court Justice Stephen Breyer likes out-of-country precedent. The Texas Supreme Court likes the Restatements of the Law. Gerry Spence told of a Wyoming appellate judge who was wont to quote from Justinian's Institutes. When you're are briefing a new court or a new judge, check bench books, check appellate practice courses for the jurisdiction, blogs, and-- best of all-- talk to one of the deans of the appellate court's bar if you can (Often they won't want to help you or won't have time to.).
The inspiration for this post came from J. Scott Key's post in his Georgia Criminal Appellate Law Blog

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