Writing the Persuasive Memorandum (Part 2)

I have posted a template for a memorandum with some notes on the forms and template page.  Feel free to use that as a guide.

The issue that part 1 of this series left off with was that of determining which case law (primary authority) is binding (sometimes also referred to as “mandatory”) and which is only persuasive.  When writing the memorandum, you want to use only binding precedent whenever possible.  The doctrine of stare decisis dictates that the court must follow binding precedent.

To determine which is binding and which is persuasive, it is helpful to look at certain factors:

  • Jurisdiction
  • Hierarchy of authority
  • Currency
  • Similarity of facts and circumstances

The cases you use must be from the same jurisdiction (e.g. State of California) in order to be binding.  The California courts are not bound by decisions of the Arizona courts.

The cases must be from a court at the same or a higher level than the court to which the precedent is being offered.  The California Supreme Court is only bound by other California Supreme Court cases.

The cases you use must be current.  This does not necessarily mean recent or within the last six months.  Currency will depend on the area of law.

The cases you choose should have similar facts and circumstances.  The more similar the case is, the better.  If facts are substantially different, that could make a case more persuasive than binding.

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