A Great Article for Litigation

I was reading the March 2010 edition of the Tennessee Bar Journal recently, and I came across Michael J. Higdon's article titled "When the Case Gives you Lemons . . .: Using Negative Authority in Persuasive Legal Writing." Vol. 46, No. 3, Pages 14-19. This was a great article which discussed exactly how to use negative authority. I'm sure that we've all been in positions where there is at least one case contrary to the outcome we desire. Higdon's article really explores how to use that negative authority to achieve your desired outcome. In his article, he notes that, first and foremost, it is important to mention the negative authority. Nothing good comes from not mentioning the negative authority. I remember when clerking, it was always a bad sign when a party wrote its brief, but it did not address the cases against its desired outcome. Such a situation is peculiar because, as I would outline the briefs, I would not have a point with a matching counter-point, rather, usually, instead of the counter-point, it would be a random discussion of some remotely-related point of law. That is not helpful. Remember that if you are appealing, then the issue is legally-based, as opposed to factually-based, so your whole job is to argue the law, which means getting it right.

Higdon also highlights that the main idea of bringing forward negative authority is to frame it in such a way to where you are either telescoping in or out to fit what you want. The trick is to distinguish your case from the case you are citing and to persuade the court to take either a narrower or broader view, depending on your position. Higdon points out that often when you have a split panel of judges, their views end up being defined on how broadly they define the issue. I think that the case of the right to privacy defined in Griswold v. Connecticut is a fantastic example of when the court stepped back and defined their holding by the broad scope of the right to privacy. I feel that the courts have recently begun tailoring each opinion to the facts at hand to make each holding as narrow as possible. This is particularly so when the cases involve hot-button topics like gun-control, abortion (especially late-term abortion), and military detainees.