At How Appealing, Howard Bashman gives us this post about citing to district court opinions. He quotes a Seventh Circuit opinion decided yesterday that admonishes lawyers not to cite district court opinions, because they “lack authoritative effect,” and instead to incorporate “into their own presentations” whatever persuasive rationale is offered in the opinion.
Bashman appears to doubt lawyers will heed this advice:
The reality is that advocates will always regard a legal proposition that a judge has accepted — even if only a “lowly” federal district judge — as potentially more worthy of another court’s credence than a proposition for which no authority is cited.
I think he’s right. And opposing lawyers will always feel compelled to respond on the merits rather than point out the cited case’s lack of authoritative effect.
UPDATE (5/4/07): I got to thinking about this post last night and had some thoughts for updating it today. It could wait until my thoughts formed more completely. After all, the blog was only in its fourth day and had a total of 20 or so hits. Then I woke up to see the avalanche of hits from the How Appealing blog (thanks for the traffic, Mr. Bashman) and wished I stayed up late last night to update.
There’s a good reason lawyers will always feel compelled to respond to the merits of a cited district court opinion. They should — at least if the merits were presented. The key is to stick to the merits without fighting over the significance that the point has been adopted by a district court.
Take a close look at where the Seventh Circuit drew the line. Here is what Chief Judge Easterbrook’s opinion said:
Finally, the litigants have debated at length the significance of Chicago Truck Drivers Health & Welfare Fund v. Teamsters Local 710, 2005 U.S. Dist. LEXIS 42877 (N.D. Ill. Mar. 4, 2005), which discusses the handling of stock received in demutualization. It is a pointless debate. The Teamsters’ plans have terms different from those of the Professional Benefit Trust. What’s more, decisions of district judges have no authoritative effect. [Citations.] District judges’ opinions often contain persuasive observations, but these can be incorporated into the parties’ briefs. It is never helpful to have an [sic] lengthy exchange on what a particular district court’s opinion “really means” and whether that case was correctly decided. The parties should learn what the opinion has to teach and weave its wisdom into their own presentations.
What’s the difference between arguing “whether the case was correctly decided” and “weaving its wisdom” into a brief, after which the parties will debate that wisdom? The only difference seems to be an actual citation to the opinion. Thus, the bottom line appears to be that the court wants to hear an argument about the merits of a position taken by a district court, but it doesn’t (or at least shouldn’t) care that a district court has actually adopted that position.
Fight over the merits of an idea, proposition, argument or what have you all you like. Just don’t slug it out over the significance of a district court having said it.