The Court's Own Precedent #28
Definition
Voice technique · Tier Expert
Drawing on the deciding court's own prior decisions on the issue. Where Borrowed Authority uses any court's language, this surfaces the court's own reasoning — authority a court is especially likely to find persuasive because it reflects its own prior analysis.
Example
"This Court has held that a party's unexplained failure to produce demanded records supports an adverse inference. [Caption], Index No. [—] (Sup. Ct. [County] [year]). The same analysis applies here." It invites the court to apply its own settled reasoning.
Anti-pattern
"As this very Court so correctly recognized in its prior, well-reasoned decision..." (flattery converts recalled authority back into advocacy).
Requirements
- The cited decision is one the deciding court itself issued
- The proposition is one the court has already adopted, not one being urged on it for the first time
- The citation is accurate and pinpoint — a mischaracterized prior ruling destroys the technique and the drafter's credibility
- The drafter does not flatter the prior decision; the citation stands on its own
Why it's expert
It requires reading the court's own prior orders on the issue, not just the reported Court of Appeals cases everyone cites. Associates cite the leading case; experts also surface the court's own consistent reasoning. A proposition the court has already adopted is not so much argued as recalled.
How it differs
- Distinguished from Borrowed Authority (#26)
Borrowed Authority uses an appellate court's words for their moral or rhetorical weight. The Court's Own Precedent draws on the deciding court's prior reasoning, which it is especially likely to find persuasive because it is the court's own.