James C. Schroeder is a partner, and Robert M. Dow, Jr., is an associate, in the appellate practice group at Mayer, Brown & Platt in Chicago.

The phone rings. The general counsel of a major manufacturing company is on the other end; she wants you to handle the appeal of an important case that the company just lost. She asks you to read the trial briefs and to get back to her next week with your preliminary ideas on appellate strategy.

As you review the trial materials, you realize that the appeal will not be an easy one. On one of the key issues in the case, there does not appear to be any precedent directly on point; on this question, the court of appeals will be sailing into uncharted waters. On another important issue, things seem to be even worse: There is governing case law directly contrary to the position you would like to argue on appeal.

What advice do you give your client about how to handle each issue? How will you convince the court to make new law in favor of your position? And what chance do you have of getting the court to change its mind and abandon precedent?

Start with the obvious: It is easier to persuade a court to make new law when it is considering an issue for the first time. This happens more often than you might think. Future Supreme Court Justice Wiley Rutledge, while still a member of the D.C. Circuit, once wrote that it is "surprising to find how many appealed cases present issues not directly or exactly ruled by precedent." Wiley Rutledge, "The Appellate Brief," 28 A.B.A. Journal at 251, 253 (1942). This is still true today; in our experience, many appeals involve at least one issue not clearly controlled by existing case law.

A threshold question is how to frame the issue before the court. Generally, you should not bite off more than your client needs to chew. This may require some self-discipline — resisting the temptation to ask the court to make a splashy, headline-grabbing ruling when a simple, incremental change in the law will do the job.

Of course, there may be special circumstances that will make looking for the headline the best strategy. For example, if the court in which your case is pending has shown a predilection for bold, sweeping pronouncements (because of its philosophy, politics or personality) or has suggested that it would be open to doing so if faced with the issue presented in your case, you may want to give the court a reason to do something dramatic. And there may be extra incentive for your client to gamble on an aggressive stance (perhaps arguing in the alternative for a more cautious approach) if the client is likely to face the same question in future cases. Ordinarily, however, arguing for an incremental change in the law will be the better course.

In fact, this is how legal evolution generally occurs. The law has evolved over hundreds of years — occasionally in leaps and bounds, but far more frequently in gradual, sometimes almost imperceptible, shifts. As Justice Cardozo observed, changes in the law typically occur "inch by inch." Benjamin N. Cardozo, The Nature of the Judicial Process at 25 (1921). Although the changes, "as they were made in this case or that, may not have seemed momentous in the making," the result years later often "has been not merely to supplement or modify; it has been to revolutionize and transform." Id. at 27-28.

One advantage of incrementalism is the comfort that it gives to courts. The reliance on precedent and hierarchy within the judiciary reflects an inherent conservatism that counsels against seeking too much change too soon. Judges are typically more comfortable with making modest changes in legal principles — nudging the law slightly in one direction or another — than with issuing broad pronouncements that portend a radical deviation from prior precedent. This tendency is particularly important in an appellate court, where several judges decide a single case. A judge proposing (or appearing to propose) an incremental change of current rules is much more likely to be able to put together a majority — and avoid being overruled by an en banc court or a higher court — than a judge overtly suggesting dramatic deviations from existing law. "[I]t is not unusual for a court to change the law without emphasizing its departures from or reinterpretation of precedent; emphasis on continuity is characteristic of common law lawmaking even when innovative." United States v. Hollingsworth, 27 F.3d 1196, 1198 (7^th Cir. 1994) (en banc) (Posner, C.J.).

For these reasons, if the court has not considered the precise question that your case presents, search for a close analogy from which the court can push the law a bit along the path that you prefer, yet still feel tethered in some sense to its own precedents. As the second Justice, Harlan explained, "[t]he decision of an apparently novel claim must depend on grounds which follow closely on well-accepted principles and criteria. The new decision must take its place in relation to what went before and further [cut] a channel for what is to come." Poe v. Ullman, 367 U.S. 497, 544 (1961) (Harlan, J., dissenting). Similarly, if the position that you have staked out is not too outlandish, look for out-of-state decisions or scholarly commentary supporting it. You may find support for your position in traditional sources of law with which the court will be familiar.

You should weigh a number of factors in deciding how best to present your argument on an issue of first impression. First, think about the court in which your case is pending. Intermediate appellate court panels are often reluctant to take the law where it has never gone before. Supreme courts and courts of appeals sitting en banc, on the other hand, establish new rules of law on a reasonably frequent basis and are much more willing to plow new ground. Indeed, a supreme court’s freedom to return to first principles if it wishes means that it may not matter to that court that intermediate appellate courts have resolved the issue at hand repeatedly and consistently. To cite two recent examples, the United States Supreme Court held that there is no aiding and abetting liability under § 10(b) of the Securities Exchange Act, Central Bank v. First Interstate Bank, 511 U.S. 164 (1994), and that the federal mail fraud statute does not cover government corruption cases that defraud citizens of their intangible right to honest and impartial government. McNally v. United States, 483 U.S. 350 (1987), despite decades of unanimous contrary precedent on both issues in the federal courts of appeals.

Assuming that there is no Supreme Court holding in the way, a federal court of appeals sitting en banc is similarly free to decide what the law of the circuit will be. But there are important practical limitations that make dramatic changes in the law less likely in a circuit court. F or one thing, even if the Supreme Court has spoken only in dictum, lower courts often feel compelled to follow it. As Judge Posner has written, especially

where it is a recent dictum that considers all the relevant considerations and adumbrates an unmistakable conclusion, it would be reckless to think the Court likely to adopt a contrary view in the near future. In such a case the dictum provides the best, though not an infallible, guide to what the law is, and it will ordinarily be the duty of a lower court to be guided by it.

Know your Judges

In deciding whether (and how aggressively) to push for a change in the law, it is important to know your court and know your panel. Some courts have been notoriously eager to make new law in cases of first impression — for example, by recognizing new causes of action or constitutional rights. The California Supreme Court in the 1960s and 1970s and the Ninth Circuit Court of Appeals in more recent years are good examples. Other courts have historically been more reluctant to expand the law in new directions.

It will usually be easier to have a sense of the general tendencies of your court and panel when you are in front of a supreme court. Because the entire supreme court typically hears each appeal, you know the composition of your panel from the beginning. (There are rare exceptions; the Louisiana Supreme Court, for example, has eight justices, only seven of whom sit on any given case.)

Intermediate appellate courts are often more difficult to characterize as a whole; how the court is likely to react to a particular argument frequently depends on which judges end up on your panel. Micro-planning may help here, depending on the local practice. Occasionally, counsel can learn early on which judges will decide the case. In the D.C. Circuit, for example, the parties are told the panel members (and the argument date) when the briefing schedule is issued. In other courts, the total number of judges may be small (the First Circuit), or the case may be assigned to a particular division of, say, four judges at the outset (some districts in the California Court of Appeals). Either way, counsel will usually have a pretty good idea of which judges will decide the appeal. In still other courts — the Fifth and Sixth Circuits, for example — the names of the judges on the panel hearing your case will be released days (or even weeks) before the argument. While this is too late to matter for writing the brief, the information can help you prepare for oral argument.

Knowledge of the panel’s identity may help you to decide whether the panel would be receptive to a particular argument, or whether to tailor your arguments to that panel. But you should use this information with caution and judgment. Your argument will be quickly undermined if the panel sees it as a transparent effort to pander to its predilections. And there is always the danger that you have misjudged the panel’s likely views and put all of your eggs in the wrong basket.

Remember, too, that cases of first impression place a premium on providing the court with a clear path to the desired result. This means not only that you must write clearly and logically (an asset in any appellate brief), but also that you must explain — in simple, step-by-step fashion — the reasons why the court should adopt a legal rule that it has not adopted before.

Begin by stressing the reasons why the existing rule was created; as Judge Holmes taught, "a page of history is worth a volume of logic." New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921). Follow this with an explanation of why the new rule you are proposing is consistent with, and makes sense in light of, existing precedent. And in cases where an obvious alternative rule exists, explain why that option should not be selected.

When a party asks the court not only to make new law but also to overrule existing law in the process, the task is even more daunting. Courts are naturally reluctant to find fault with their prior opinions. Moreover, a rather complex set of principles governs the circumstances in which it is appropriate even to revisit earlier rulings. For these reasons, the advice of one leading appellate advocate is worth repeating: "Insofar as overruling is concerned, the answer is ‘don’t ask for it if you can possibly avoid doing so.’" Robert L. Stern, Appellate Practice in the United States at 323 (2d ed. 1989).

The first thing to consider is whether it is essential that the prior case be overruled for you to win. Perhaps the earlier decision can be distinguished. All opinions "must be read in the setting of the particular cases and as the product of pre-occupation with their special facts." Freeman v. Hewit, 329 U.S. 249, 252 (1946), overruled in part on other grounds, Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 (1977). Maybe the facts in your case are sufficiently different from the facts in the earlier case that the court will feel comfortable not following the prior precedent.

Or, maybe you can convince the court to limit the earlier decision to its facts — the "polite formula for overruling." Miller v. United States Steel Corp., 902 F.2d 573, 575 (7^th Cir. 1990) (Posner, J.). A court will sometimes resort to this so that it can avoid admitting a past mistake.

As a last resort, take another careful look at the opinion that presents the apparent obstacle, to be certain that the problematic issue was actually decided. "Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents."" Webster v. Fall, 266 U.S. 507, 511 (1925). As Judge Posner put it, "[a] point of law merely assumed in an opinion, not discussed, is not authoritative." In re Stegall, 865 F.2d 140, 142 (7^th Cir. 1989).

If a prior case must be overruled for your client to prevail in an appeal, be sure to ask explicitly for that relief, at least as an alternative argument. If you do not, the court may decline to overrule its precedent because you did not ask it to do so. See, e.g., Morehead v. Tipaldo, 298 U.S. 587, 604-05 (1936).

Recognize that there may be instances in which the court is powerless to overrule a prior decision. In Wisconsin, for example, the intermediate court of appeals cannot overrule, or even modify, one of its own decisions; it is bound by those decisions until the state supreme court indicates otherwise. Cook v. Cook, 560 N.W. 2d 246, 256 (Wis. 1997). Many circuits follow the rule that one panel cannot overrule an earlier panel’s decisions; only the en banc court can do that. E.g., Murray v. Cable Nat’l Broad. Co., 86 F.3d, 858, 860 (9^th Cir. 1996). In contrast, the Seventh Circuit permits a panel to overrule a prior decision of another panel as long as the overruling opinion is circulated to the entire court before it is issued and a majority of the court is not in favor of deciding the issue en banc. 7^th Cir. R. 40(e). But whether or not the panel you are currently before lacks the power to overrule an earlier case, be sure to raise the issue in your brief; otherwise, you may waive the right to present the question to a court that does have the authority to do so.

The court in which your case is pending is also relevant in another respect. If you are in the United States Supreme Court on a question of federal law, or a state supreme court on a state law issue, virtually anything is fair game — at least theoretically. The same is not true in other courts. If there is a Supreme Court case on point, a court of appeals will follow it, no matter how questionable that precedent might be in light of intervening Supreme Court decisions. For example, the Seventh Circuit faithfully followed Albrecht v. Herald Co., 390 U.S. 145 (1968), an antitrust decision that "despite all its infirmities, its increasingly wobbly, moth-eaten foundations …, ha[d] not been expressly overruled." Khan v. State Oil Co., 93 F.3d 1358, 1363 (7^th Cir. 1996) (Posner, C.J.). The court observed that "the Supreme Court has told the lower federal courts, in increasingly emphatic, even strident, terms, not to anticipate an overruling of a decision by the Court; we are to leave the overruling to the Court itself." Id. The court, nevertheless, added that the case it was bound to follow "should be overruled" and even predicted that "[s]omeday … it will be." Id. The Seventh Circuit proved to be correct in every respect: the Supreme Court granted certiorari in Khan, overruled Albrecht, and commended the court of appeals for adhering to what was at the time still binding precedent. State Oil Co. v. Khan, 118 S. Ct. 275, 284 (1997) ("The Court of Appeals was correct in applying that principle despite disagreement with Albrecht, for it is this Court’s prerogative alone to overrule one of its precedents.").

If the court you are in can overrule the troublesome precedent, you still must overcome the doctrine of stare decisis. That doctrine, as the Supreme Court has explained, reflects "a policy judgment that ‘in most matters it is more important that the applicable rule of law be settled than that it be settled right.’" Khan, 118 S. Ct. at 284 (quoting Agostini v. Felton, 117 S.Ct. 1997, 2016 (1997). But because it is a "‘principle of policy’ … and not … an ‘inexorable command,’" Seminole Tribe v. Florida, 517 U.S. 44, 63 (1996), stare decisis may give way to a compelling argument that existing law is wrong, stale, or otherwise in need of revision.

Perhaps the most important factor as to whether a court may change existing law is the source of that law. State and federal courts have often noted that they are most willing to reconsider past rulings in constitutional cases. See, e.g., Seminole Tribe, 517 U.S. at 63. This is more than just rhetoric; from 1971 through 1992, the Supreme Court of the United States overruled in whole or in part no fewer than 34 of its previous constitutional decisions. Planned Parenthood v. Casey, 505 U.S. 833, 959 (1992) (Rehnquist, C.J., concurring in part and dissenting in part). The frequency with which constitutional decisions are overturned reflects the fact that, apart from the notoriously arduous process of amending a constitution, there is no other way to correct mistakes in constitutional jurisprudence.

When it comes to overruling common law precedents, the courts have generally taken a flexible approach. On the one hand, given the legislature’s shared authority over the shape of the common law, there are good reasons for courts to defer to precedent, particularly in those areas in which the legislature has frequently acted. On the other hand, the courts are generally in control of the development of common law, and have a "duty to develop the orderly evolution of the common law," Nunnally v. Artis, 492 S.E.2d 126, 129 (Va. 1997), "in light of the changing conditions and circumstances of society." Washington v. RTC, 68 F.3d, 935, 939 (5^th Cir. 1995). This evolution usually occurs through a process that is "inherently incremental in nature; the very genius of the common law is that it proceeds empirically and gradually, testing the ground at every step.’" Barnes v. Independent Automobile Dealers Ass’n, 64 F.3d 1389, 1394 (9^th Cir. 1995). Within this conservative framework, however, the common law is constantly evolving — sometimes by overruling prior cases — because "the need for stability in law must not be allowed to obscure the changing needs of society or to veil the injustice resulting from a doctrine in need of reevaluation." Alvis v. Ribar, 421 N.E. 2d 886, 896 (lll. 1981).

Statutory Interpretation

By contrast, when statutory interpretation is involved, stare decisis exerts a much more powerful force against changes in the law. Judicial reluctance to reinterpret statutory terms is rooted in the principle of separation of powers. When the legislature has enacted a statute, it has drawn a line — both in what it has said and what it has not said — that courts are reluctant to redraw. Like expanding or contracting the reach of a statute in a case of first impression, changing the interpretation of key statutory terms "amounts to an amendment of the statute itself rather than simply a change in the thinking of the judiciary with respect to common law concepts which are properly under its control."" Froud v. Celotex Corp., 456 N.E.2d 131, 137 (Ill. 1983).

As a result, courts have been reluctant to preempt the legislature’s prerogative to modify its own enactments, particularly in matters involving contract or property rights where "stare decisis concerns are at their acme." Khan, 118 S.Ct. at 284. In these circumstances, stare decisis acts as a policy of judicial restraint in areas traditionally reserved for legislative action. Those who desire a change in the law — in particular, a radical change — are often implicitly or explicitly directed by courts to their elected representatives.

The doctrine of stare decisis is thus a significant, but not an insurmountable, obstacle. Overcoming that obstacle will involve convincing the court that its prior decision is outdated, impractical, dangerous, or just plain wrong. Here are some questions to ask in determining how to accomplish this.

First, do the "lessons of accumulated experience," Khan, 118 S.Ct. at 284, indicate that current law has created confusion or spawned an unworkable situation for those whose conduct it purports to regulate? If so, the court may be forced to rethink its impractical precedent.

Second, was the prior decision poorly reasoned or wrongly decided on its face? In this vein, it is worth investigating whether other courts or legal scholars have criticized the decision, even if they were powerless to limit or overrule it. In some cases, district and intermediate appellate courts openly suggest that their judicial superiors take another look at settled law. A half dozen opinions or law review articles on antitrust law written by Seventh Circuit Chief Judge Posner or Judge Easterbrook, for instance, will likely get the attention of the Supreme Court in a petition for a writ of certiorari. See generally Khan, 118 S.Ct. at 281-84 (citing articles and opinions by those two judges). They may also get the attention of a sister circuit panel or en banc court faced with internal precedent to the contrary.

Third, does the prior decision reflect a plurality opinion, evidence a badly fractured court, e.g., Seminole Tribe, 517 U.S. at 63-64, or include a particularly vigorous and persuasive concurring or dissenting opinion? See, e.g., Khan, 118 S.Ct. at 280. If a concurrence or dissent has presciently forecast events that were contrary to the hopes and expectations of the majority who joined in the prior decision, this factor may gain added importance.

Fourth, is the prior decision simply a remnant of an abandoned doctrine that is good law solely because the court has not had specific occasion to reconsider it? The Seventh Circuit’s decision in Felzen v. Andreas, 134 F.3d 873 (7^th Cir. 1998), illustrates this kind of "inevitable" overruling. In Felzen, the court explained why certain prior decisions — allowing some class action nonparties to appeal from adverse decision — were no longer authoritative in view of subsequent decisions, and then administered the coup de grace by "formally overrul[ing]" several precedents, "[l]est doubt linger" as to their status. Id. At 874-75. The Supreme Court recently granted certiorari in Felzen, __ U.S. ___, 119 S.Ct. 29 (1998); time will tell if the Seventh Circuit jumped the gun.

Fifth, have the facts supporting the prior decision changed, or come to be viewed differently with the passage of time, so that the old rule can no longer be justified? The most famous example of this concern carrying the day is probably Brown v. Board of Education, 347 U.S. 483 (1954), which "rested on facts, or an understanding of facts, changed from those which furnished the claimed justifications for the earlier constitutional resolution[ ]" in Plessy v. Ferguson, 163 U.S. 537 (1896). Casey, 505 U.S. at 863 (joint opinion of Justices O’Connor, Kennedy, and Souter).

Sixth, do the reasons for adopting the prior rule in the first place still exist? "It is revolting to have no better reason for a rule of law than that it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past." Oliver Wendell Holmes, "The Path of the Law," 10 Harv. L. Rev. 457, 469 (1897).

Seventh, has the court’s personnel changed significantly since the prior case was decided? As much as the courts (and the Supreme Court in particular) insist that changes in personnel do not justify overruling precedent, see Agostini v. Felton, 117 S. Ct. 1997, 2007 (1997), appellate practitioners know that the practical reality is sometimes different. Recent history offers a mixed bag in this regard. Many hoped that changes in the Supreme Court lineup between Roe v. Wade, 410 U.S. 113 (1973), and Casey, supra, would lead to a reversal of Roe; they were disappointed when that did not happen. The Court’s Eleventh Amendment decision in Seminole Tribe, supra, on the other hand, can probably be traced to the departure of three justices who tended to vote together (Brennan, Marshall, and Blackmun). The vote changes occasioned by their departure led to the overruling of Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989), another Eleventh Amendment case decided just seven years earlier. And the state courts are not immune from these changes either. Perhaps the most striking example in recent years is the Texas Supreme Court, which has become more hospitable to the arguments of business interests as the composition of that court has changed. Of course, it is usually imprudent for a brief even to allude to a change in a court’s membership, but it is nonetheless an important factor for counsel to include in the calculus when assessing the likelihood of persuading the court to overrule a prior case.

Eighth, has the general judicial philosophy embodied in the prior opinion been eroded in subsequent years by other schools of thought? "There are vogues and fashions in jurisprudence as in literature and art and dress." Cardozo, The Nature of the Judicial Process at 58. Arguments that might have been dismissed out of hand by judicial devotees of the Warren Court may be welcomed by a new generation of judges who firmly believe in the teachings of the law and economics school.

Ninth, who wrote the prior opinion? The reputation of the authoring judge will undoubtedly affect the likelihood that a court will overturn an earlier decision. The already difficult task of persuading a court to jettison prior precedent will be made considerably more difficult if the opinion under attack was written, say, by Learned Hand.

Replacement Principles

All these factors may help you to show what is wrong with current law and why it should be changed; they shed significantly less light on what ought to be substituted in its place, however. In rare cases, it may be enough just to point out the manifest inadequacy of the law as it stands. But your argument will be more likely to succeed if it takes the next step and proposes something better. If the court is to depart from an existing rule of law, it almost certainly will need to find a new one. A step-by-step analysis of what that new (and presumably better) rule of law might be will make it more likely that you can convince the court not only that existing law is inadequate, but also that the new path you have charted is promising enough to overcome the inertial force of stare decisis.

Whether you are asking an appellate court to overrule existing law or to create new law on an issue of first impression, following some basic rules will help your chances:

• Use the facts to your advantage. Good facts make an enormous difference. Justice Jackson once explained that [i]t may sound paradoxical, but most contentions of law are won or lost on the facts. The facts often incline a judge to one side or the other. A large part of the time of conference is given to discussion of facts, to determine under what rule of law they fall. Robert H. Jackson, "Advocacy Before the Supreme Court: Suggestions for Effective Case Presentations," 37 A.B.A. Journal 801, 803 (1951). If you are representing a business that wants to change a rule of law that affects it in a number of cases, you should choose the most sympathetic factual context to advance the argument before an appellate court.

Making Law

Cases that raise issues of first impression or require counsel to advocate overruling prior decisions are often the most interesting and challenging ones. But they can also be the most frustrating. And they will test your patience, particularly when you must shoulder the often heavy burden of stare decisis from the trial court all the way through to the highest court in the jurisdiction.

Because predictability and consistency are hallmarks of a mature jurisprudence, the law often seems to change at a snail’s pace, if at all. Arguing for changes in the law is therefore not easy work. But the law does change over time — sometimes dramatically. And even unsuccessful efforts to make new law serve the essential function of testing yesterday’s principles of law against the needs of today’s society.

This Mayer, Brown & Platt article provides information and comments on legal issues and developments of interest to our clients and friends. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

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