each contract will be different. Yet, the opening brief could in a foot-note distinguish the adverse cases, hypothetically as follows: Of course, under different facts than presented here, courts have found arbitration claus-es conspicuous. E.g., White v. White, 483 S.E.2d 187, 189 (Ga. 2000) (clause was in bold and on first page); Fring v. Goldman, 482 S.E.2d 187, 188 (Ga. 1999) (clause was in larger font than the rest of the contract, and on the signature page); Schrader v. Pinkman, 481 S.E.2d 187, 189 (Ga. 1998) (clause was high-lighted in light blue). This approach takes away the respondent’s weapons. A defense-less opponent is a good opponent. The second benefit in addressing authority in this fashion is pragmat-ic. Court rules often severely limit the length of reply briefs. There may simply be limited space to devote to re-characterizing a case. There are other benefits too. In our experience, decision-makers give credence to lawyers who cite and address not just controlling, but merely persuasive, adverse authority. On closely fought issues, or in deciding questions where judicial discretion exists, credibil-ity counts. Further, judges want to get things right, and they and their law clerks are busy. Citing persua-sive adverse authority can make a difference on the merits. In sum, effective legal writ-ers will seldom focus on whether authority is “controlling enough” to necessitate disclosure. Instead, effective advocates know that the best approach to adverse authority is to seize the author-ity and use the authority against their opponent. Karen J. Sneddon is an associate professor of law at Mercer University School of Law. August 2013 David Hricik is currently on leave from Mercer University School of Law, serving as law clerk to Chief Judge Randall R. Rader of the U.S. Court of Appeals for the Federal Circuit during 2012-13. He will return to Mercer in 2013. The legal writing program at Mercer University continues to be recognized as one of the nation’s top legal writing programs. 1. See g a . R. p Rof . C ondUCt 3.1(b) (prohibiting a lawyer from knowingly advancing a claim or defense unless it can at least “be supported by good faith argument for an extension, modification or reversal of existing law”). 2. g a . R. p Rof . C ondUCt 3.3(a) (prohibiting a lawyer from knowingly failing “to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel”). See generally , Daisy Hurst Floyd, Candor Versus Advocacy: Courts’ Use of Sanctions to Enforce the Duty of Candor Toward the Tribunal , 29 g a . l. R ev . 1035 (1995); Tyler v. State , 47 P.3d 1095, 1100–02 (Alaska 2001) (explaining interrelationship 3. 4. 5. Endnotes 6. between Rule 11, other state substantive rules, and ethical rules). The entire opinion in Denny v. Radar Indus., Inc. , 184 N.W.2d 289 (Ct. App. Mich. 1971) is: The appellant has attempted to distinguish the factual situation in this case from [a prior case]. He didn’t. We couldn’t. Affirmed. Costs to appellee. Tyler v. State , 47 P.3d 1095, 11004–05 (Alaska 2001) (discussing various formulations). Arch Ins. Co. v. Carol & Dave’s Roadhouse, Inc. , 2013 WL 1900953 (W.D. Pa. May 7, 2013). See Lamkin v. Morinda Props. Weight Parcel LLC , 2012 WL 2913257, *2 n.15 (D. Utah July 16, 2012) (noting that a lawyer would have found controlling adverse authority had he spent a “few minutes” Shepardizing the case the lawyer did cite to the court); Stewart v. JPMorgan Chase Bank, N.A. , 473 B.R. 612, 740 (Bankr. W.D. Pa. 2012) (Court cautioned counsel to be “more candid in the future or sanctions may be imposed.”); State v. McNeil , 2012 WL 1337365, *7 n.3 (Ct. App. N.C. Apr. 17, 2012) (reminding counsel of duty to disclose adverse authority); Former Employees of Chevron Prods. Co. v. U.S. Sec. of Labor , 245 F. Supp.2d 1312, 1281 n.7 (U.S. Ct. Int’l. Tr. 2002) (explaining continuing nature of this duty); g a . R. p Rof . C ondUCt 3.3(b) (same). Arch Ins., 2013 WL 1900953 at *4. 81
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