Borrowed Authority #26
Definition
Voice technique
Using a court's own language — its rhetoric, moral framing, and emotional expression — as a substitute for the drafter's own advocacy. The drafter stays neutral. A higher authority does the arguing.
Example
"Discovery 'is not a game of hide-and-seek, and a party may not bury the documents that would decide the case.' [Binding decision]." The appellate court said "hide-and-seek." The drafter didn't.
Anti-pattern
"As the Court of Appeals so powerfully and eloquently stated in its landmark decision..." (the drafter's admiration undermines the borrowed authority)
Requirements
- A quoted phrase from a court that carries emotional or moral weight
- The quote is deployed at a moment in the motion where the drafter would otherwise need to make an emotional argument
- The drafter does not add editorial language around the quote
How it differs
- Distinguished from normal citation
Normal citation supports a legal proposition ("The court held that..."). Borrowed Authority uses the court's words for their persuasive force, not just their legal holding. The drafter is outsourcing the emotional argument to someone the judge is required to respect.