Example 5.3

Takeaway point 5.3: Don’t just distinguish: devalue the other side’s most important persuasive authorities.

The two previous examples showed you how to distinguish a case. Now let’s look at how to diminish adverse authority.

The following passage comes from a case involving three drug smugglers. One, Michael Adams, was convicted. The other two smugglers testified against Adams in exchange for lighter sentences. On appeal, Adams challenged his conviction, claiming that the government had violated a federal statute, 18 U.S.C. § 201, by offering the other two smugglers reduced sentences in exchange for favorable testimony. Section 201 prohibits “promis[ing] anything of value” to “influence … testimony under oath.” Adams found two cases (Lowery and Singleton) that agreed with his reading of § 201, and his brief trumpeted those two authorities. Here, the government obliterates those two cases.

Source: Government’s brief in United States v. Adams, 176 F.3d 493 (11th Cir. 1999).

The brief emphasizes that the Tenth Circuit itself gasped when Singleton was decided (by vacating the case and rehearing it en banc almost immediately).

While I have omitted the string cite to save space, this spot in the brief is a perfect place to add a string cite to show that many courts have rejected Singleton.

Remember where you are litigating. The government noticed that Singleton (Tenth Circuit) acknowledged that the Eleventh Circuit had reached a contrary conclusion. Thus, wisely, this brief emphasizes that fact to the Eleventh Circuit.

This passage reflects a blunderbuss attack against Singleton: it raises doctrinal arguments, statutory arguments, rule-based arguments, and policy arguments. You do not need to challenge so aggressively every case that your adversary cites, but undermining its best case (as well as distinguishing it) usually proves valuable.