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Generally, you should focus your research on four types of cases, and you should cite unpublished opinions only when published decisions don’t exist for the issue.
1. Identify binding cases. Binding authority for a particular legal issue may surprise you. For instance, if you’re litigating a federal issue in a state appellate court, only United States Supreme Court opinions are binding.1 If you’re in federal court litigating a state-law issue, only decisions from the state’s highest court are binding.2 And if you’re appealing a state issue in a jurisdiction such as Ohio where an opinion from one appellate district is merely persuasive to appellate panels in other geographic districts, only opinions from that particular district or the state’s highest court are binding.3
2. Select favorable holdings. Don’t simply pluck rules from the first cases listed in your search results. A court “holds” on issues that are actually disputed; a court’s restatement of a rule from a prior case is not a holding. Thus, the best cases are those that have applied the relevant rule to similar facts and held in a way that favors your client.
3. Choose cases with persuasive outcomes. As Justice Scalia and Bryan Garner explain in Making Your Case: The Art of Persuading Judges, the persuasive weight of a case depends on its outcome and procedural posture. For example, an appellate decision upholding a jury verdict under a deferential standard of review is less persuasive than an opinion affirming summary judgment under de novo review. A highly persuasive case is where an appellate court ruled that a lower court abused its discretion by doing the same thing that your opponent is asking your court to do. An appellate decision is also persuasive if the court affirmed a lower court’s decision under de novo review based on facts similar to your client’s case.
4. Highlight the judge’s prior opinions. If your judge has tackled the subject matter of your brief, you won’t need to convince the judge that the prior opinion is well reasoned. And by citing a decision favorable to your client, you’ll force the opposing party to take the awkward and uncomfortable position of arguing that your judge was wrong. One way to make sure the judge’s clerk knows that the judge wrote the cited opinion is to state the judge’s name in a parenthetical at the end of the citation, like this: Palmer v. Ill. Farmers Ins. Co., 666 F.3d 1081 (8th Cir. 2012) (Murphy, J.).
5. Cite unpublished opinions sparingly. In federal court, unpublished opinions—those not published in a printed reporter—aren’t binding authority.4 Most state courts follow the same rule.5 Although most unpublished opinions are only persuasive authority, most federal and state courts permit attorneys to cite them. Several states, though, allow attorneys to cite unpublished opinions for only specific reasons (e.g., claim or issue preclusion) or require them to give copies of the unpublished decisions to opposing counsel (e.g., Minnesota).
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