How to Effectively Distinguish Adverse Authority

A persuasive brief must explain both why the court should follow the cases discussed in your brief and why the cases cited in your opponent’s brief are distinguishable. Just as an effective affirmative argument frequently advances a rule synthesized from a number of cases, an effective refutation of adverse authorities often identifies a common theme in the text, then expands on the theme in a parenthetical following each cited case. The theme might be that the adverse cases conflict with a more recent binding case, or that they are factually distinguishable on a relevant ground. The following passage employs this technique:

The employment handbooks in the two cases Smith cites contained no disclaimer stating that employment was at will; unsurprisingly, those courts determined that the handbooks altered the at-will status of those employees. See Paniagua v. City of Galveston, 995 F.2d 1310, 1314-15 (5th Cir. 1993) (relying on the “absence of any disclaimer” in concluding that the employee’s claim was valid); Vida v. El Paso Employees’ Fed. Credit Union, 885 S.W.2d 177, 180 (Tex. Ct. App. 1994) (ruling that handbook lacking any disclaimer altered plaintiff’s at-will employment). But unlike the handbooks in those cases, Acme’s handbook contains two explicit disclaimers. Smith’s claim for breach of contract, therefore, is meritless.

Another way to minimize the impact of seemingly adverse authority is introduce your discussion of the case or cases with “although.” This allows you to discuss the adverse case without appearing to be arguing in favor of your opponent’s case.

Assume that Jones v. Acme Corp. is the leading case about piercing the corporate veil. For this reason, it may merit discussion in the text. Arguing that, “although Jones v. Acme Corp. allows a court to pierce the corporate veil when the corporation is undercapitalized, here, Wiley Corp. was adequately capitalized,” is more powerful than stating that “[i]n Jones v. Acme Corp., the court pierced the corporate veil because Acme was undercapitalized,” then going on to explain that you case is different because Wiley Corp. was adequately capitalized.