Example 5.7

Takeaway point 5.7:Try to give the court a way to decide in your client’s favor without overruling past cases — but, when absolutely necessary, ask the court to overrule itself.

Courts do not like overruling their prior opinions.

We look again at the case in which the government placed a GPS device on a suspect’s car without a warrant. Two prior opinions posed major problems for the car’s owner, who wanted the Court to vacate his conviction and to exclude the evidence gathered by the GPS device. Those cases — Knotts and Karo — held that the government was able to place a “beeper” (a rudimentary tracking device that worked only when police remained in close proximity) in a container of chemicals and to use the beeper to track suspects along public highways. The Jones Court ultimately distinguished Karo from Jones. Even so, Jones’s lawyers were rightly scared of these opinions, both because they upheld the government’s attempt to track a suspect and because the opinions contained problematic dicta. Thus, Jones’s lawyers both distinguished those cases and, to be safe, asked the Court to overrule those opinions.

Source: Car owner’s brief from United States v. Jones, 132 S. Ct. 945 (2012).

When terrible language conflicts with your position, confront it. Build your affirmative case before doing so — this passage, for instance, appeared near the end of Jones’s brief, after Jones had built his own affirmative argument.

The quick counterpunch that words like “But” and “Yet” offer at the start of a sentence is particularly useful right after you concede a point. Alternatively, the prior sentence could have placed the bad information in a subordinate clause, such as “Although Knotts states X,....” Used here, however, that technique would have created an unwieldy sentence, so the lawyers select a snappy way (i.e. the word “But”) to begin addressing the harmful language in Knotts and Karo.

This is a common move when dealing with terrible dictum that looks like a holding: point out, gently, that the court used overly broad language and inadvertently opined on situations that it did not anticipate.

Numbers are a useful way to signal that a case is being distinguished in multiple ways (without needing to say so explicitly). As noted in Example 5.1, lawyers usually avoid saying that they are distinguishing a case; they just do it. Here, the lawyers deploy expertly the technique of punching adverse cases quickly. They concisely raise three grounds for distinguishing the adverse cases, and then they move on.

Notice that the request that the Court overrule Knotts and Karo is both subtle and a backup argument. Some cases require more extensive explanation as to why a past opinion should be overruled. That approach is necessary when your case cannot meaningfully be distinguished from the adverse controlling case. Here, the brief’s affirmative argument had already shown the problems that warrantless GPS searches pose to civil liberties.