Motion Tip: Rely on Binding Authority if Possible

by Yvette Brown 18. June 2013 10:54

 

“The trial court is at the bottom of the hierarchy of authority.  Its decisions are likely constrained by both an intermediate appellate court and a high court.  A state court deciding an issue of federal law will also have United States Supreme Court authority constraining its decision.  Because the trial court is at the bottom of the pecking order, it will care most about binding authority.  Arguments based on persuasive authority and policy arguments are unlikely to persuade the trial judge except on issues of first impression.   If you are trying to preserve an issue for appeal, you may need to cite to persuasive authority or rely on policy arguments.  Otherwise, stick to telling the trial court what its bosses have to say on the issue.”  [Source: Kamela Bridges and Wayne Schiess, Writing for Litigation]

PSL Law Library collection contains a wealth of legal writing tips.  For more tips consult Writing for Litigation or any of the PSL Law Library’s legal writing books.

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