How to Attack Adverse Authority

What should you do when your opponent cites authority in a motion or brief that appears directly on point? Panic.

What should you do when your opponent cites authority in a motion or brief that appears directly on point? Panic. After you finish panicking, you need to determine two threshold issues: whether the authority is binding or merely persuasive and whether the facts are analogous to your situation. The answers to those questions will dictate how you attack the adverse authority.

If the authority seems to be binding (but is not), then explain why the authority doesn’t bind your court. If the facts of a case are dissimilar, you could use the case affirmatively to support your argument or could demonstrate that your opponent inaccurately described the case. If the facts of a case are similar, you could attack its reasoning. But if a case is binding and has directly addressed your issue, the better approach is to distinguish it.

In this article, I explain six different methods to knock down adverse authority and illustrate them with examples from the best litigators. At least one method should apply to your opponent’s cited authority. If not, you may consider settling the claims.

Your Opponent’s Case Is Not Binding

Say you are before the Sixth Circuit and your opponent relies heavily on a prior Sixth Circuit opinion. Without even reading the opinion, your initial assumption would likely be that the case is binding. But you may be able to argue that the opinion does not bind your court. Here are three ways to do so.

First, you could show that your opponent’s authority conflicts with binding authority, such as a recent Supreme Court case or a newly-enacted statute or regulation.

Second, you could establish that the prior case did not actually address the precise issue in your case. In Tahoe Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, the issue before the U.S. Supreme Court was whether a public agency’s moratorium constituted a “taking” under the Fifth Amendment. In representing the agency, Chief Justice Roberts explained why a prior Supreme Court decision did not control.

Nothing in First English, or, for that matter, Justice Brennan’s dissent in San Diego Gas & Electric, 450 U.S. 621, requires or even suggests that a temporary moratorium on development be treated as a per se taking. Indeed, notwithstanding petitioners’ repeated and profound misreading of the Court’s holding in First English, the Court never reached the merits of the takings issue, even in dictum.

. . .

Notwithstanding petitioners’ repeated attempts to convey the impression that the Court actually determined that a taking had occurred in First English, this Court specifically declined to review the merits of the takings claim. The Court expressly “reject[ed] [the] suggestion that . . . we must . . . resolve the takings claim on the merits before we can reach the remedial question.” Id. at 312-313. Leaving no question as to the scope of its holding, this Court stated: “We merely hold that where the government’s activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective.” Id. at 321 (emphasis added).

By quoting the opponent’s cited case, Chief Justice Roberts left no room for doubt on whether a “taking” was at issue in that case.

Third, you could argue that your opponent relies on mere dictum, not a holding. This argument is especially effective when the dictum is from an intermediate appellate court. But it is not as persuasive when the dictum is from the highest court in the jurisdiction, unless the court’s composition has changed since the prior decision.

Use a Seemingly-Adverse Case as a Sword

I love using cases that my opponent cites to support my argument. My opponent cannot then argue—and maintain credibility—that the case is logically flawed. In the next example, the defendant used plaintiff’s cited case as a sword to prove that the Copyright Act preempted the conversion claim.

Plaintiff relies on Seastrunk v. Darwell Integrated Techs., Inc., No. 3:05-CV-0531-G, 2006 U.S. Dist. LEXIS 46576, at *17-19 (N.D. Tex. July 10, 2006), which actually supports preemption here. In that case, the court concluded that the conversion claim was not preempted for the sole reason that plaintiff alleged that the defendant “withheld [plaintiff’s] software in its tangible forms.” Id. (emphasis added). That case stands for the unremarkable point that the Copyright Act does not preempt claims for conversion of tangible property (such as a compact disc), even if that tangible property contains the plaintiff’s intellectual property (such as the music on the compact disc). But in this case, Plaintiffs allege that Defendant only converted “Plaintiffs’ intangible copyright property.” Thus, Plaintiffs’ conversion claim is preempted.

Point Out Any Distortions

Another great way to refute your opponent’s authority—and to undermine his or her credibility—is to point out that the attorney has misrepresented the authority. This is exactly what Chief Justice John Roberts did in his reply brief in Intergraph Corp. v. Intel Corp. He represented a subsidiary (Intergraph) and argued that its parent corporation (Intel) could not have licensed the subsidiary’s patents because the subsidiary never consented to the license. Chief Justice Roberts effectively identified the misrepresentation.

The lone Delaware case relied on by Intel, Anadarko Petroleum Corp. v. Panhandle Eastern Corp., 545 A.2d 1171 (Del. 1988), likewise supports Intergraph’s position. In that case, the court held that “in a parent and wholly-owned subsidiary context, the directors of the subsidiary are obligated only to manage the affairs of the subsidiary in the best interests of the parent and its shareholders.” Id. at 1174 (emphasis supplied). In its brief, however, Intel distorts this quotation by substituting the words “parent company” for the words “directors of the subsidiary,” thereby falsely implying that it is the parent company, and not the directors of the subsidiary, that actually manages the subsidiary’s affairs. Intel Br. 24-25. The fact that Intel must deliberately distort the language of this decision highlights the futility of its position.

When pointing out a misrepresentation, attack the sin, not the sinner. In other words, resist the urge to call your opponent names. If your opponent misleads the court, it digs its own credibility grave.

Flawed Reasoning

For adverse cases that are not binding, you could demonstrate that the reasoning behind the decision is flawed. You could argue that an adverse case relied on authorities that, on close examination, do not support its holding. Or you could show that the logical extension of your opponent’s cited case would create absurd results, as Judge Frank Easterbrook did in Kissinger v. Reporters Committee for Freedom of the Press. The issue was whether the lower court erred in granting a remedy without first concluding that the Freedom of Information Act was violated. In Point Made, Ross Guberman sets forth Judge Easterbrook’s argument (key language is italicized):

The remarkable thing about the district court’s opinion (which was adopted by the court of appeals) is that it awarded extraordinary equitable relief under the FOIA without ever finding that a violation of the FOIA had occurred. The court apparently found that the Federal Records Acts of 1950 . . . had been violated by an improper removal of the notes. It then invoked its equitable jurisdiction under the FOIA to restore the notes to the agency for disclosure under FOIA. This holding necessarily means that anyone can sue an agency and compel it to retrieve records removed in violation of the agency’s records-management rules; it supplies, in effect if not in design, a private right of action to enforce the Records Act. This holding cannot be reconciled with the fact that . . . the Federal Records Act . . . [does not] create a private remedy to enforce agency record-keeping obligations.

Although Judge Easterbrook was referring to the flawed reasoning of the lower court, the same principles apply to attack adverse cases.

But do not waste time or space discussing the flawed reasoning of a binding case. Even if your trial court wants to agree with you, it cannot disregard the binding authority; don’t ask a court to do something it cannot do.

Almost Everybody Agrees with Us

Many people prefer to follow the crowd. So, too, with judges. (They are people, after all.) Thus, if you spend time researching, you might find that the majority of courts agree with your, not your opponent’s, position. This method of refuting adverse authority is highly persuasive when binding authority is lacking. Here is an example from Justice Elena Kagan when she was the Solicitor General:

In contrast, the majority of the courts of appeals that have considered the question have held, in accord with the court of appeals in this case, that the statutory maximum penalty in a drug conspiracy case turns on the jury’s determination of the type and quantity of drugs involved in the conspiracy as a whole. See United States v. Seymour, 519 F.3d 700, 709-710 (7th Cir.), cert. denied, 129 S. Ct. 527 (2008); United States v. Stiger, 413 F.3d 1185, 1192-1193 (10th Cir.), cert. denied, 546 U.S. 1049 (2005); United States v. Phillips, 349 F.3d 138, 140-143 (3d Cir. 2003), vacated on other grounds by Barbour v. United States, 543 U.S. 1102 (2005); United States v. Knight, 342 F.3d 697, 709-712 (7th Cir. 2003), cert. denied, 540 U.S. 1227 (2004); United States v. Turner, 319 F.3d 716, 721-723 (5th Cir.), cert. denied, 538 U.S. 1017 (2003); Derman, 298 F.3d at 42-43.

In just one sentence, Justice Kagan explained that the “crowd” agreed with the government’s position. But her citations would have been more persuasive had she included parentheticals showing how the cited cases support the proposition.

Different Facts = Different Outcome

Sometimes your opponent’s best authority is a binding case. The go-to method in this situation is to distinguish the adverse case. Although distinguishing adverse authority is commonly used, attorneys often do it ineffectively. Attorneys usually state that the adverse cases are “distinguishable” and then list the facts and holding of each case without explaining why the cases are distinguishable, losing the judge in the details. And judges don’t like to be lost.

In the following example, the former Solicitor General, Paul Clement, dismantles his opponent’s leading case. In Equifax Information Services, LLC v. Soutter, the district court certified the class and one issue for the Fourth Circuit was whether the alleged inaccuracies in about 300,000 credit reports presented common or individualized issues of fact.

The district court failed to understand the individualized nature of the inaccuracy question before it because the court viewed this case as a close cousin of the FCRA class this Court approved in Stillmock v. Weis Markets, Inc., 385 Fed. App’x 267 (4th Cir. 2010). J.A. 712–13. But this case is nothing like Stillmock. There was only one “question” in that case, and it could generate a common answer for all class members: whether the defendant’s “repeated identical conduct” (printing receipts showing the consumer’s entire credit card number in violation of the FCRA) was willful. Stillmock, 385 Fed. App’x at 273. . . . Each consumer [in Stillmock] had been exposed to an “identical risk” as a result of uniform conduct. Id. at 273. The court could answer the question of willfulness once, on a classwide basis, because each class member had experienced the same violation based on the same conduct under the same circumstances. Under these unusual circumstances, this Court not surprisingly viewed it as a relatively simple process to resolve the FCRA claims on a classwide basis. See id. at 272–75. But the FCRA claims at issue here are entirely different. Hundreds of thousands of individual inaccuracy determinations cannot be equated with a single, unitary willfulness determination.

Mr. Clement discussed only the relevant details about the adverse case and specifically identified why the case did not apply. As a result, the judges could easily grasp the key distinguishing fact between the two situations.

Concluding Thoughts

You have just learned six methods to refute adverse authority. Many times, just one method is sufficient. But for your opponent’s best authority, you should attack it with more than one method. For instance, you could demonstrate that a case is not only distinguishable but also not binding on your issue. And the best place to refute your opponent’s best authority is in your initial motion or brief. (Don’t take my word; ask Justice Antonin Scalia and Judge Richard Posner.) By affirmatively addressing the adverse authority, you can present it in a light most favorable to your client without sounding defensive.

Featured image: “Miguel Flying Kick” by Boso is licensed CC BY 2.0. The colors in this image have been adjusted and a vignette filter was added.


  1. Interesting article Eric – thanks.

    It seem to me that underlying all of your points is this: make sure you read the cases on which your opponent relies properly. Don’t just skim through them, or you’re less likely to be able to find grounds on which to apply these principles.

    That, hopefully, is self-evident to most. But experience has shown me that it’s not self-evident to all….


  2. Avatar Josh Camson says:

    Very nice discussion. One of the best articles on here in a while.

  3. Avatar Luis says:

    Indeed a very interesting article shared.

  4. Avatar Canadian 135 says:

    This is a first rate article on a skill that is critical to litigators. Well done.

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