The Temptation Not to Disclose Adverse Authority

Vol. 40 No. 2

The author is a U.S. district judge in the Northern District of Illinois, Chicago, and an associate editor of Litigation.

Your case is in Illinois. The applicable law is that of Texas. Your associates find law that supports your position. They also find a Texas appellate decision that goes the other way. You have not been impressed with your opponent. You suspect he may not find the decision. So, what do you do? Wait and see if he cites the case? Or disclose it and explain why the case is wrongly decided or distinguishable?

If you are like most litigators, your decision may be a calculated one. How likely is the decision to come to light? How important is it? What will be my client’s reaction if I do disclose it and we lose based on the case? Why would I even think about doing my opponent’s work for him?

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