• October 27, 2015

Minnesota Litigator -- Scalia 2


Justice Scalia was in town last week.  Maybe you had a chance to hear him talk.

His visit prompted me to pick up one of the books he’s authored with Bryan Garner.  Making Your Case is a short, readable guide to written and oral argument.  I found some familiar principles laid out clearly and some gems.

For example, the authors suggest that you cite governing authority that is flatly against you.  That way, you can’t be said to have waived the issue.  (For Minnesota cases, consult the Thiele line of cases.)

The authors also discuss the different kinds of nongoverning authority.  And rank them in order of persuasiveness this way:

  • Dicta of the governing court (clearly identified by you as dicta)  – most persuasive
  • Holdings of governing courts in analogous cases – less persuasive
  • Holdings of courts of appeal at the same level as the court whose law governs your case
  • Holdings of trial courts
  • Holdings of courts inferior to your court and courts of other jurisdictions – least persuasive.

The authors also say that the strongest authority will be cases where the lower court ruled against your position and was reversed on appeal.

Next strongest is a case where the lower court ruled for a client like yours and was affirmed on appeal.  Common sense but nicely laid out.

The book is available at a law library near you.  Except for the William Mitchell Library because I have that one checked out for a few weeks..

(Read an AP story on Justice Scalia’s talk here.)









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