March 04, 2016 Articles

Young Lawyer's Corner: What to Do about Adverse Precedent

There is no clear answer for the precise amount of candor due to courts.

By Sanford Hausler

You’re writing an appellate brief. In researching your issue on appeal, you find cases that support your position, but you find a case that cuts against you. Maybe the case is distinguishable or maybe it is directly on point. Maybe it is a case in your jurisdiction or maybe it is not. Maybe it is a controlling precedent or maybe it is not. No matter what, the question remains—what is your ethical duty to the court? Must you disclose the adverse precedent?

This issue arose in Gonzalez-Servin v. Ford Motor Co., 662 F.3d 931 (7th Cir. 2011), a decision by Judge Richard Posner. That case addressed two appeals from grants of forum non conveniens in multidistrict litigation. Judge Posner noted that these appeals were controlled by two decisions already decided in the Seventh Circuit—Abad v. Bayer Corp., 563 F.3d 663 (7th Cir. 2009), and Chang v. Baxter Healthcare Corp., 599 F.3d 728 (7th Cir. 2010). The appellants in one of the Gonzalez-Servin appeals filed their opening brief before these cases had been decided, but the appellees’ brief was filed after Abad and Chang were issued and relied heavily on them. In their reply brief, the appellants did not address Chang at all and discussed Abad only a little, even though both cases were heavily relied on by the appellants and were highly relevant to the appeal. Even worse, in the other Gonzalez-Servin appeal, the opening brief had been filed after both Abad and Chang were decided but did not cite either case—and failed to address those cases in the reply brief even after the appellees’ brief repeatedly relied on them.

Premium Content For:
  • Litigation Section
Join - Now