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Story time on persuasive authority:
I think my very first hearing, I had a...well let’s call it a miscellaneous motion in Harris County District Clerk. I had spent a lot of time preparing this. A lot. I felt very proud of my motion. I had some great points in it. 1/x https://twitter.com/rmfifthcircuit/status/1279066935540547584
I think my very first hearing, I had a...well let’s call it a miscellaneous motion in Harris County District Clerk. I had spent a lot of time preparing this. A lot. I felt very proud of my motion. I had some great points in it. 1/x https://twitter.com/rmfifthcircuit/status/1279066935540547584
At the hearing, the Court tore it up. I really like this District Judge, and what he said was some of the best advice I’ve ever gotten from a Court. 2/x
The Court: Who said this?
Noah: Well the Fifth Court of Appeals...
The Court: Counsel...
Noah: Yes, Your Honor.
The Court: I care about four courts: this one, **points at the window** the two across the street and one in Austin.
Noah: Yes, Your Honor.
3/x
Noah: Well the Fifth Court of Appeals...
The Court: Counsel...
Noah: Yes, Your Honor.
The Court: I care about four courts: this one, **points at the window** the two across the street and one in Austin.
Noah: Yes, Your Honor.
3/x
The Dallas case sounded better and even had a better holding. There was a Houston case. It was probably 75 percent as good. But I wanted to go for broke. Big mistake. 4/x
This was a learning opportunity. The Court took the motion under advisement and it was mooted by a superseding event, as the Court explained it thought would happen at the hearing. But I learned my lesson. 5/x
I’ve never been able to look at briefs and such the same anymore. I can’t unsee the point. And it makes so much sense. Why cite Waco? Who cares? 1st/14th are binding. Cite them, even if they have less pizzazz. Because they are binding. 6/x
Some months later, I had another motion in the same Court. And remembering the guidance, I made a much better brief. I focused on binding authority. But sometimes you can’t do that. Sometimes the case you **need** is persuasive. So I leaned in. 7/x
Explain why the persuasive authority should be adopted, why it isn’t foreclosed by binding authority and the hints the binding appellate court has given it would go that way. (Obiter dictum and such.) 8/x
By far the best advice I’ve gotten from a Court in my albeit very short career. But it made me a much better advocate. 9/9
A coda: Not all Courts have the same skepticism toward persuasive authority. Sometimes you can get away with it! But like, why take the chance? No Court will ever fault you for leaning more on binding authority when one has the chance. 10/10
