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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

  • work Practice Area

    Class Action and Other Litigation

Date & Time
  • event Date

    Tuesday, November 30, 2021

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$297.00
CLE
ALL

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.

Faculty

Mark Cooney
Professor
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 practice with civil-litigation firms, specializing in civil appeals. He has successfully briefed and argued appeals in the Michigan Supreme Court, the Michigan Court of Appeals, and the U.S. Court of Appeals for the Sixth Circuit. He’s a past chair of the Michigan State Bar's Appellate Practice Section, was a founding board member of the Michigan Supreme Court Historical Society’s Advocates Guild, and is a frequent speaker and moderator at programs on legal writing and appellate practice. Prof. Cooney is Editor-in-Chief of The Scribes Journal of Legal Writing.   

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Benjamin G. Shatz
Partner & Certified Appellate Specialist
Manatt Phelps & Phillips LLP

Mr. Shatz Co-Chairs Manatt's Appellate Practice Group. He has briefed hundreds of civil appeals, writs, and petitions to the U.S. Supreme Court, U.S. Courts of Appeals, California Supreme Court, and California Courts of Appeal, covering a multitude of areas of law. He is a frequent lecturer and author, published in California Litigation, California Lawyer, Los Angeles Lawyer, Inside Counsel, The Daily Journal, The Recorder, For the Defense, California Defender, CEB Civil Litigator Reporter, and many other legal publications. 

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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.

Outline

  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

Benefits

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?