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Monday, May 07, 2007

Ind. Decisions - More on "Don't bother us by arguing over what some federal district judge may have said in another case, Seventh Circuit tells lawyers"

Re Chief Judge Frank H. Easterbrook's statement last week in RLJCs Enterprises v. Professional Benefit Trust, Howard Bashman of How Appealing writes in his weekly column for Law.com this week:

Unsurprisingly, Easterbrook's logic is impeccable. A proposition of law is not made correct (or incorrect) merely because of how some federal district judge has ruled in another case. Similarly, neither a non-precedential ruling nor the view of the author of a learned treatise authoritatively determines whether a given proposition of law is correct.

Nevertheless, the reality is that even the most accomplished appellate attorney imaginable, when faced with a choice between filing a brief full of persuasive argument but bereft of any authority, or the same brief containing the same arguments but also non-binding authorities, will choose the latter course.

Where there exists either binding U.S. Supreme Court precedent or binding precedent from the court in which the current appeal is pending, it is unnecessary to cite to district court rulings, learned treatises or relevant law review articles. But in a case where no binding precedent exists to govern the outcome, attorneys understandably believe that having some authority to cite -- albeit non-precedential authority -- is better than nothing.

Posted by Marcia Oddi on May 7, 2007 06:44 AM
Posted to Ind. (7th Cir.) Decisions