This study of appellate advocacy examines factors that affect judicial treatment of precedents identified in litigant briefs. Although we find some attorney and party characteristics influence whether a court addresses precedent cited by a party, legal resources are not as influential in determining whether the court adopts a party’s use of a precedent. At times, ideological congruence between the circuit panel and the litigant can increase the likelihood that the court’s opinion will use a precedent in the same way as presented by the litigants. There is also some support for the importance of attorney experience. Even when their clients ultimately win the case, attorneys with no experience before the circuit are less likely to see the court use litigant-cited precedents in a similar way to the party brief. Even when their clients lose, there is some support to show that attorneys with more experience are more likely to see the court’s opinion address the precedents the attorneys have raised positively. This suggests that attorney experience has some influence in shaping legal policy, regardless of whether the litigant wins or loses.
Original Publication Information
Moyer, Laura, Todd Collins, and Susan Haire. 2013. “The Value of Precedent: Attorney Briefs and Judicial Opinions in the U.S. Courts of Appeals.” Justice System Journal 34(1): 62-84.
Moyer, Laura P.; Collins, Todd A.; and Haire, Susan B., "The value of precedent : appellate briefs and judicial opinions in the U.S. courts of appeals." (2013). Faculty Scholarship. Paper 83.
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