THE VALUE OF PRECEDENT: APPELLATE BRIEFS AND JUDICIAL OPINIONS IN THE US COURTS OF APPEALS

This study of appellate advocacy examines factors that affect judicial treatment of precedents identified in litigant briefs. Although we find some attorney and party characteristics influence whether a court addresses precedent cited by a party, legal resources are not as influential in the court's adoption of a party's use of a precedent. At times, ideological congruence between the circuit panel and the litigant increases the likelihood that the court's opinion will use a precedent in the same way as presented by the litigants. Concerning attorney experience, when their clients ultimately win the case, attorneys with no experience before the circuit are less likely to see the court use litigant-cited precedents in a similar way to the party brief. Even when their clients lose, experienced attorneys are more likely to see the court's opinion address the precedents the attorneys have raised positively. This suggests that attorney experience has some influence in shaping legal policy, regardless of whether the litigant wins or loses.