Adverse Authority: Rationales and Methods for Using it to Strengthen Legal Argument

Abstract:     
"Much of the literature on the ethics of legal advocacy focuses on a 'you should because you are supposed to' argument." However, this analysis focuses on disclosing and confronting adverse authority to help an attorney win her case. The paper ends with three specific writing techniques to employ in "grappling with" adverse authority: A) highlighting inconsistent rule statements; B) distinguishing and synthesizing cases on their facts and holdings, and C) using procedural posture and policy arguments.

This paper also identifies and discusses ethical rules for attorneys directed to obligations to disclose adverse facts and adverse authority in legal argument. It further discusses mental resistance and sells "the benefits of candor." The topic of the strengths inherit in the use of adverse authority had no fully explored in the scholarship in 1999, and is still under-discussed in the literature, as of 2008.

Keywords: legal writing, legal research, advocacy, adverse authority, legal method, adverse facts, winning your case, professional ethics, dlsclosure, ethics, bad fact, bad law, persuasion

JEL Classifications: K10, K19, K40, K41, K42

Accepted Paper Series