4.1

Mandatory and Persuasive Authority

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INTRODUCTION

Authority is that which is sought by research, and upon which legal writing relies. We expand our understanding of authority in this section.

Lecture Notes . . .

AUTHORITY: IDENTIFYING RELEVANT MATERIAL

Always think of authority in these groupings:

• Primary or Secondary
• Mandatory or Persuasive
• Non-authority

Primary or Secondary
This part should be very easy by now. If the authority is law, it's primary. If it's not law, it's secondary.

Note About Secondary Authority: Try not to place a relative value on secondary authority. For instance, Newsweek magazine is not law. It is tempting to think of it as non-authority since it is highly unlikely that it would ever be quoted in a legal document. But the fact is that it could be quoted, is not law, and is therefore secondary authority. Just because you would not quote something does not mean you could not.

Mandatory or Persuasive
In order to be mandatory, the material being cited must be from a higher authority within the appropriate jurisdiction. If the authority is from the same level or lower, or if it is from another jurisdiction, such as state v. federal, or another state, the authority is persuasive.

Non-authority
Anything the court would not use in reaching its decision. Samples of non-authority include:

Digests
Digests are basically collections of headnotes. Since headnotes should never be cited, a digest should never be cited, either, making it non-authority.

Shepard's
Shepard's provides thousands and thousands of citations. But there is no commentary or discussion provided. Since there is nothing to quote, Shepard's would be considered non-authority.

Indexes
Since an index would never provide quotable material, it is considered non-authority.

Invalid authority
Authority that has been overturned, or superceded by later authority, would not be relied upon and is thus non-authority.

We have already discussed the concepts of primary, secondary, and non-authority sources. As mentioned on this page:

•Primary authority is law
•Secondary authority is non-law
•Non-authority is that which the court would not use to reach its decision

The more difficult aspect of authority is to determine whether it is mandatory or persuasive authority. Knowing whether an authority is mandatory or persuasive will tell you how powerful that authority will be in arguing a position to the court.

After determining whether an authority is primary or secondary, the researcher must determine the weight that authority will carry with that particular court.

• If the authority is from a source higher than the court in which the action is being pursued, and within that court's jurisdiction, the authority is mandatory.

• If the authority is from the same level or lower, or is out of the jurisdiction of the court, the authority is persuasive.

Possible Mandatory Courts
As pointed out in this section, it is sometimes easier to determine what courts could be mandatory on the court in which the action is being pursued. All other courts would be persuasive, at best.

For instance, let's assume your case is in the New Mexico Court of Appeals. (Put your finger on State Court of Appeals using the diagram of court structure.) What courts could be mandatory? Just follow the arrows up (since to be mandatory the court from which the case comes must be higher). The answer would be:

• The New Mexico Supreme Court
• The United States Supreme Court

Now, this does not mean you can use mandatory authority only. In fact, most of what you will find and use is persuasive authority. But as a researcher, you always look for mandatory authority.

Paralegal Perspective . . .

AUTHORITY
What happens if a paralegal conducting research finds a dozen cases applicable to the client's facts? Which cases should be used? While there is no set number of authorities that a paralegal is limited to, there is a mechanism for determining which authorities would carry more weight with the court. Is the authority from the same jurisdiction? Is it from a different state? Is the court the authority is from higher than the court where your client's case is being heard? These questions determine whether a case is mandatory or persuasive authority. Mandatory authority is always preferred. Persuasive authority is good authority, but not as good as mandatory.

Having said that, realize this: We always search for mandatory, but we usually find persuasive.





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