(c) Legal arguments based on precedent

(i) Where you have a case on point

You should always assume that there exists a case 'on all fours' with your case—in other words, your case on all points matches another case.290 Only after you have exhaustively researched the law might you have confidence that no such case exists; only then, should you settle for less.291

But 'citation of the case in point [is] by no means the last word'.292 Even if you find a case 'on all fours', and even if it comes from the highest court of your own jurisdiction, that does not end the matter.293 As Karl Llewellyn wrote, 'There is no precedent that the judge may not at his need either file down to razor thinness or expand into a bludgeon'.294

For example, the judge may 'explain' the case, 'limit it to its facts', or somehow 'distinguish' it from your case.295 So, where you or your client's opponent cites a governing precedent, see if you can 'file down the case to thinness' by using any of the following kinds of 'files'.

brainstorm BRAINSTORM

Thrust

'My interpretation is supported by this precedent'

Parry

'No, the precedent does not stand for the proposition for which my opponent cites it'296
'Yes, the precedent does articulate the proposition for which my opponent cites it, but the proposition was merely obiter dicta'297

'Yes, the precedent does articulate the proposition for which my opponent cites it, but the precedent is weakened by:

  • its form'298 (for example, the decision was delivered ex tempore and contained 'neither discussion nor analysis nor, indeed, citation, of previous authority');299 or
  • its foundation'300 (for example, the precedent 'stands by itself' outside any 'stream of authority'301)

'Yes, the precedent stands for the legal proposition for which my opponent cites it, but the case at bar is different';302 that is, the cases are factually distinguishable, either because:

  • 'the case at bar does not fall within the precedent because of a material difference of fact'303(non-restrictive distinguishing); or
  • 'I seek to restrict the precedent to its exact facts' (by treating as material to the earlier decision some fact present in the earlier case but lacking in the case at bar) (restrictive distinguishing)304

(Counterthrust: 'Yes, the cases are distinguishable. But the wide rule on which the court chose to rest bars out what might have otherwise been an appealing distinction')305

'Yes, the precedent stands for the legal proposition for which my opponent cites it, but the precedent has a built-in public policy factor; public policy has changed and while the legal principle of the precedent case is still good law, it is distinguishable because of the change of circumstances'306

(Counterthrust: 'Even though doubts are felt or policy disapproved, the rule is still too firmly established to disturb')307

'Yes, the precedent stands for the legal proposition for which my opponent cites it, but there is another precedent on the matter that is of equal weight that stands for the opposite proposition.'308 For example:

  • 'My opponent's precedent says a plaintiff has a right to be secure from a certain kind of injury. But my precedent says a defendant has a right to freedom of a certain kind of action.'

(The next step is to propose a way to resolve the conflict your way (by invoking some principle or balancing test).309 For example, the plaintiff may have a right to be secure from a certain kind of injury, but the plaintiff's ordinary right must yield to defendant's more fundamental right; or the defendant's right 'outweighs' the plaintiff's right.)310

'Yes, the precedent stands for the legal proposition for which my opponent cites it, but the case at bar lacks one of the precedent's factual or normative premises.'311 For example:

  • 'I agree the precedent stands for the proposition that "Promises should be kept". But at the case at bar, there was no promise' (or 'the promise was kept').

'Yes, the precedent case stands for the legal proposition for which my opponent cites it, but there should be an exception.'312 For example:

  • 'The plaintiff may have a right to be secure from a certain kind of injury, but he has forfeited his right by his conduct in this case'

'Yes, the precedent case stands for the legal proposition for which my opponent cites it, but the precedent yields the opposite result.' (This technique is called 'flipping'.)313 For example:

  • 'I agree the precedent stands for "no liability without fault", but when a person who innocently injures another innocent refuses to compensate, he is at fault'314
'Yes, the precedent stands for the proposition for which my opponent cites it, but the case effectively has been overruled by a decision of a higher court or by the introduction of a new statute'315

'Yes, the precedent case stands for the legal proposition for which my opponent cites it, but the court should explicitly overrule the precedent.'316 For example, the precedent:

  • is 'manifestly wrong'
  • has 'achieved no useful result but rather has led to inconvenience'
  • is 'an old decision ill-suited to contemporary conditions'
  • is 'a recent decision that has not been relied on in a manner that weighs against reconsideration'

Table 68: Arguments based on precedent (case on point)

290 See further http://dictionary.law.com (accessed 5 July 2007) ('On all fours. A reference to a lawsuit in which all the legal issues are identical (or so close as to make no difference) to another case, particularly an appeals decision which is a precedent in deciding the suit before the court. Thus, an attorney will argue that the prior case of, for example, Steele v Merritt is "on all fours" with the case before the court, and so the court must reach the same conclusion').

291 Robert A Kessler, 'Analysis of the Problem' in William R Roalfe (ed), How to Find the Law (6th ed, 1965) 12.

292 Frederick Bernays Wiener, Briefing and Arguing Federal Appeals (1961, 2001 reprint) 148.

293 Robert A Kessler, 'Analysis of the Problem' in William R Roalfe (ed), How to Find the Law (6th ed, 1965) 13.

294 Karl Llewellyn, The Bramble Bush (1930) 180 quoted in Richard K Neumann Jr, Legal Reasoning and Legal Writing: Structure, Style, and Strategy(5th ed, 2005) 169. See also, Karl Llewellyn, The Common Law Tradition (1960, 1996 reprint) 77–91 (providing 'A Selection of Available Impeccable Precedent Techniques').

295 Robert A Kessler, 'Analysis of the Problem' in William R Roalfe (ed), How to Find the Law (6th ed, 1965) 13.

296 Paul Perrell, 'Stare Decisis and Techniques of Legal Reasoning and Legal Argument' (1987) 2(2, 3) Legal Research Update 11 reproduced at http://legalresearch.org/docs/perell.html (accessed 27 January 2008).

297 Karl Llewellyn, The Common Law Tradition (1960, 1996 reprint) 86; Paul Perrell, 'Stare Decisis and Techniques of Legal Reasoning and Legal Argument' (1987) 2(2, 3) Legal Research Update 11 reproduced at http://legalresearch.org/docs/perell.html (accessed 27 January 2008); William Huhn, The Five Types of Legal Argument (2002) 111.

298 Karl Llewellyn, The Common Law Tradition (1960, 1996 reprint) 86, fn 105.

299 Newcrest Mining (WA) v Commonwealth [1997] HCA 38 (Gummow J, referring to Teori Tau v Commonwealth (1969) 119 CLR 564).

300 Karl Llewellyn, The Common Law Tradition (1960, 1996 reprint) 86, fn 105.

301 Victoria v Commonwealth ('Second Uniform Tax Case') (1957) 99 CLR 575, 616 (Dixon CJ).

302 Paul Perrell, 'Stare Decisis and Techniques of Legal Reasoning and Legal Argument' (1987) 2(2, 3) Legal Research Update 11 reproduced at http://legalresearch.org/docs/perell.html (accessed 27 January 2008). See also Frederick Bernays Wiener, Briefing and Arguing Federal Appeals (1961, 2001 reprint) 153 ('The soundest advice on this score is to distinguish the offending precedent boldly: go on a broad ground, don't get bogged down in finicky details, and don't go in for overrefined analysis').

303 See, for example, Karl Llewellyn, The Common Law Tradition (1960, 1996 reprint) 84.

304 Paul Perrell, 'Stare Decisis and Techniques of Legal Reasoning and Legal Argument' (1987) 2(2, 3) Legal Research Update 11 reproduced at http://legalresearch.org/docs/perell.html (accessed 27 January 2008).

305 Karl Llewellyn, The Common Law Tradition (1960, 1996 reprint) 77.

306 Paul Perrell, 'Stare Decisis and Techniques of Legal Reasoning and Legal Argument' (1987) 2(2, 3) Legal Research Update 11 reproduced at http://legalresearch.org/docs/perell.html (accessed 27 January 2008).

307 Karl Llewellyn, The Common Law Tradition (1960, 1996 reprint) 77.

308 Paul Perrell, 'Stare Decisis and Techniques of Legal Reasoning and Legal Argument' (1987) 2(2, 3) Legal Research Update 11 reproduced at http://legalresearch.org/docs/perell.html (accessed 27 January 2008).

309 Duncan Kennedy, 'A Semiotics of Legal Argument' in Academy of European Law (ed), 3(2) Collected Courses of the Academy of European Law (1994) 309, 333.

310 Duncan Kennedy, 'A Semiotics of Legal Argument' in Academy of European Law (ed), 3(2) Collected Courses of the Academy of European Law (1994) 309, 333.

311 Duncan Kennedy, 'A Semiotics of Legal Argument' in Academy of European Law (ed), 3(2) Collected Courses of the Academy of European Law (1994) 309, 330.

312 Duncan Kennedy, 'A Semiotics of Legal Argument' in Academy of European Law (ed), 3(2) Collected Courses of the Academy of European Law (1994) 309, 334.

313 Duncan Kennedy, 'A Semiotics of Legal Argument' in Academy of European Law (ed), 3(2) Collected Courses of the Academy of European Law (1994) 309, 355.

314 Duncan Kennedy, 'A Semiotics of Legal Argument' in Academy of European Law (ed), 3(2) Collected Courses of the Academy of European Law (1994) 309, 355.

315 Paul Perrell, 'Stare Decisis and Techniques of Legal Reasoning and Legal Argument' (1987) 2(2, 3) Legal Research Update 11 reproduced at http://legalresearch.org/docs/perell.html (accessed 27 January 2008).

316 Karl Llewellyn, The Common Law Tradition (1960, 1996 reprint) 87; William Huhn, The Five Types of Legal Argument (2002) 124–5. But see Frederick Bernays Wiener, Briefing and Arguing Federal Appeals (1961, 2001 reprint) 108, 153 (an out-and-out request that a governing precedent should be overruled usually best avoided; 'it is really successful only when the precedent is generally acknowledged to be on its last legs'); Robert A Kessler, 'Analysis of the Problem' in William R Roalfe (ed), How to Find the Law (6th ed, 1965) 13 (courts reluctant to expressly overrule cases).

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