|August 5, 2014|
Previously published on July 2014
California has a huge judicial system, with six appellate districts in addition to our Supreme Court. Persuasive appellate briefs argue from the highest level of authority available, and work down. Here’s the lineup:
California Supreme Court decisions on point are the gold standard. Also note that although Supreme Court dicta isn’t authority, it may help you if it comes from an opinion signed by four or more current Justices.
Court of Appeal decisions from the same district are the second most valuable authority. Four of the districts are broken down further into divisions, but such divisions try to remain harmonious -- except in L.A. There, precedent from the same division is much more weighty, and you should treat other divisions’ opinions almost like those from another district (see below).
Next best is Court of Appeal precedent from other districts.
- It if supplements the “higher” authorities above, use it for that purpose.
- If it’s the only authority on point, cite it but don’t assume it will control. If it supports you, emphasize its persuasiveness (if you can), or add arguments to fortify it. If it hurts you, explain why your district should not follow it.
- And lastly, if another district’s precedent conflicts with a case from your district, you can still cite it if you think your district may be prepared to change its position - or if you hope to sharpen the conflict in support of a future bid for Supreme Court review. Just be forthright about it all.
- If there is truly nothing on point in California (a rare event), seek out persuasive opinions from elsewhere. starting with the Ninth Circuit and other state supreme courts. Explain why your court should follow them.
The practical message: The same California appeal may need to be briefed and argued quite differently depending on venue. Wherever you are, consider the hierarchy.