What should you do when your opponent cites authority in a motion or brief that appears directly on point? Panic. Actually, you have a better option—read my article on countering adverse authority. My article at the Lawyerist.com identifies six ways to refute adverse authority. If all six methods are inapplicable and the adverse authority is binding on a key issue, you are in trouble. Consider settling your claims. My article discusses these methods to knock down adverse authority:
- Argue that the authority is not binding (e.g., it conflicts with a recent Supreme Court case or is mere dicta);
- Use the adverse case as a sword;
- Show that your opponent misrepresented the authority;
- Argue that the reasoning is flawed;
- Prove that the majority of courts agree with your position; or
- Distinguish the case.
To see how the best lawyers apply these methods in their motions and briefs, read the full article at the Lawyerist.com.