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Going Against the Grain: 5 Tips for Avoiding the Power of Precedent

We learn early in law school about the power of precedent — made binding on lower courts under the doctrine of stare decisis. But sometimes you have to go against the grain of long-standing precedent and ask a court to reject it.

There are many tactics you can take to avoid the application of a precedential case without torpedoing your own case. For example, you can argue that a seemingly precedential case is based on statutory or case law that no longer exists or has been overruled. You can always try to persuade the court to clarify or change existing law by explaining clearly, cogently, and persuasively why the appellate court should take a different path. 

Regardless of the tactic chosen, the starting point for this analysis is always the same, i.e., the principal case or cases establishing the precedent. Here are 5 tips to get you started on your path to avoiding the power of precedent: 

  1. Determine whether the issue was fully presented and discussed and whether the court’s reasoning was sound. Read all cases and statutes cited as authority in the opinion to see if they’re accurately cited and are still good law.
  2. Pay attention to the circumstances and policies that influenced the precedent. Different economic or social policies may be given current emphasis by the courts. Changes in social practices may dictate a new rule of law.
  3. Analyze the subsequent history of the precedent. Later cases may have criticized the precedent, which might suggest that it is ripe for overruling, or impliedly overruled it. The supreme court may have implied in dictum that a different result might be appropriate if the proper case appeared. Decisions of the courts of appeal may conflict, raising the possibility of supreme court review and resolution in the client’s favor.
  4. Consider the individuals on the court that will be hearing the appeal. Personnel changes on the supreme court, for example, may give hope to the client’s cause, despite unfavorable case law. For example, in Dillon v Legg (1968) 68 C2d 728, 69 CR 72, by a 4-to-3 vote, the supreme court overruled the 4-to-3 decision in Amaya v Home Ice, Fuel & Supply Co. (1963) 59 C2d 295, 29 CR 33. The change seemed to result from the elevation to the supreme court of Justice Tobriner, the author of both the Dillon opinion and the vacated court of appeal opinion in Amaya
  5. Explain how the rejection of this precedent will not create instability in the law. The courts are particularly reluctant to overturn a rule of law when property rights have developed on the basis of current interpretation, when a particular rule of behavior has long been relied on without generating criticism, and when the legislature has had an opportunity to change the law but has not done so.

Of course you are fighting an uphill battle when you confront precedent, but success is possible. Indeed, where would the state of our law be if not for the reversal of what had once seemed to be intractable precedent.

For a complete discussion on the power of precedent and the prospects for reversal — along with everything else you need to know about civil appeals — go to CEB’s California Civil Appellate Practice, chap 5.

© The Regents of the University of California, 2011. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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  1. […] Going Against the Grain: 5 Tips for Avoiding the Power of Precedent […]

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