Assumption:   Good advocacy requires that positive facts and positive law be the focus of any analysis provided to a court. Disclosure of adverse authority will be detrimental to a lawyer's ability to attain success for his/her client.

Response:  The lawyer who weaves adverse facts and adverse authority into the lawyer's presentation of his/her affirmative case will (1) increase his/her chances of prevailing, and, in so doing, will (2) comply with the rules of professional ethics.  Opposing counsel, if diligent, will cite the adverse authority in the responsive brief.   The lawyer who sells his/her interpretation of that authority at the earliest possible moment, in the opening brief, increases his/her chances of success.

 * * *

I. Where's My Motivation?

 The focus of this discussion is on why it works to a lawyer's advantage to disclose adverse facts and adverse authority in written argumentation to a court.  Moreover, this discussion focuses on why an attorney should move beyond "disclosure" to direct confrontation of this adverse authority, to achieve important advocacy objectives.

 Such benefits of candor in the face of "adverse authority" have not been fully explored in the scholarship.  Much of the literature on the ethics of written advocacy focuses on a "you should because you are supposed to" argument. [EN1]  Attorneys who disclose adverse authority under such a motivation are likely to include the authority in a "but see" cite, perhaps accompanied by a parenthetical comment, abdicating to opposing counsel the responsibility, and the opportunity, to explain how the adverse authority supports the opponent's position.

 Two scholars, hereafter Hunt and Magnuson, have directly considered the type of motivation that any zealous attorney intuitively understands:  disclosing, and confronting, adverse authority can help you win your case.  [EN2] Hunt and Magnuson acknowledge that compliance with Rule 3.3 of the Rules of Professional Conduct creates an agonizing situation for a lawyer.  The Arkansas version of Rule 3.3, published both in the Southwestern Reporter and in Professor Howard Brill's book canvassing the law of Arkansas professional and judicial ethics, provides:
 

  (a) A lawyer shall not knowingly:
  (1) make a false statement of material fact or law to a tribunal;
  (2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;
  (3) fail 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; or
  (4) offer evidence that the lawyer knows to be false.  If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.[EN3]

The commentary to Rule 3.3(a)(3) states:
 

  Legal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal.  A lawyer is not required to make a disinterested exposition of the law, but must recognize the existence of pertinent legal authorities.  Furthermore, as stated in paragraph (a)(3), an advocate has a duty to disclose directly adverse authority in the controlling jurisdiction which has not been disclosed by the opposing party.  The underlying concept is that legal argument is a discussion seeking to determine the legal premises properly applicable to the case.[EN4]

The focus of this discussion is on the last sentence in the commentary, the policy reasons behind disclosure of adverse authority.

 Attorneys who are aware of the prescriptions of Rule 3.3(a)(3) (hereafter Rule 3.3) are diligent attorneys.  Not surprisingly, diligent attorneys will sometimes engage in more exhaustive research than their opposing counsel and may uncover adverse authority the opposing counsel will not realize exists until the diligent attorney cites it in his/her brief.  While, Hunt and Magnuson observe, "[t]he diligent attorney may feel particularly galled by the compulsion to provide the benefit of this research to an opponent who has not made the same effort," they recognize:

  [y]et, the . . . lawyer may take comfort in the fact that the court probably would have found the adverse decision on its own, and the court will, by the attorney's disclosure, appreciate the attorney's thoroughness and integrity.  Moreover, by being the first to discuss potentially damaging authority, the  . . . attorney can minimize the impact of the authority by qualifying it or distinguishing it on the facts or legal content.[EN5]

Of course many efforts to disclose adverse authority will not lead to short-term success.  One reported decision reached a result contrary to the "honest Abe" lawyer's position, even though the court made a special effort to applaud the losing attorney's compliance with Rule 3.3:
 

  This case was decided after the filing of the appellee insurer's brief, but prior to the filing of the appellant's reply brief.  Although the case is contrary to appellant's position, counsel for appellant cited it in her reply brief as contrary authority.  This is required by [Rule 3.3].  Normally we do not compliment counsel for being ethical; however, compliance with this canon, in our experience, has been the exception rather than the rule.[EN6]

Not many attorneys would find a defeat, accompanied by some paternalistic praise, worth the effort of disclosing the adverse authority in the brief they filed.

 Attorneys might be inspired to disclose adverse authority to prevent against court-imposed sanctions.  However, the handful of cases that discuss court-imposed sanctions for the rule of non-compliance with Rule 3.3 demonstrate that the Rule is not well policed.  The ones that exist are striking.[EN7]  Arkansas does not have a reported decision decided under Rule 3.3 having to do with disclosure of adverse authority.  The two decisions that exist focus on two other aspects of the rule.[EN8]

 The sheer amount of paper that crosses every trial court's and appellate court judge's desk makes policing of Rule 3.3 difficult and impracticable.  Thus, every lawyer's decision to comply with the rule would have its primary impetus in the lawyer's decision that compliance with the rule works to his or her best advantage.

 The motivation to disclose adverse authority, of a lawyer who is a repeat player before a particular court, is easy to discern.  That lawyer will appear before the same tribunal in the future and will want to the judge to trust his/her research and advocacy.  The old adage "fool me once, shame on me; fool me twice, shame on you" suggests that a judge who has once been burned by dishonest advocacy will not likely be burned in the future.

 The motivation to address adverse authority, of a lawyer who is in the respondent's position in a briefing process, is also easy to discern.  That lawyer will file an argument in direct response to the opposing counsel's legal and factual arguments.

 The motivation to address adverse authority, of a lawyer who is in the movant's position, is not so easy to discern.  That motivation has part of its inspiration in the attorney's higher sense of duty and ethics, and part of its inspiration in the attorney's fear of retribution.  However, the best inspiration would come from the attorney's sense that it is a winning strategy to disclose adverse facts and authority at the earliest possible opportunity.

 Still, the handful of reported cases discussing Rule 3.3 violations demonstrate an attorney who resists following Rule 3.3 prescriptions will parse the concepts of what is "controlling authority" and what is "directly adverse" authority to relieve him/herself of the responsibility to address such authority.[EN9]  Even an attorney who recognizes that an authority is both "adverse" and "controlling" authority may argue that s/he should wait until s/he files a reply brief to address such authority, to ensure that s/he will not be unduly disadvantaged by providing his/her superior research to opposing counsel.  However, Judge Aldisert has stated emphatically that an attorney's opening brief should be written carefully and thoroughly, because attorneys cannot expect that an opportunity to file a convincing reply brief actually exists.  Regarding opening briefs and reply briefs, Judge Aldisert provides several pieces of advice, summarized below:
 

  1. Put your best foot forward in your opening brief.  Reply briefs are not "favorite children."

  2. Never deliberately save for the reply your response to an argument you know opposing counsel will advance.  The opening brief should be drafted as persuasively and completely as possible.  Include all relevant argument in the opening brief.  In courts that are absolutely current, often the judges will receive the briefs in chief before the reply brief, and they read the briefs in chief and form tentative impressions before the reply briefs arrive.

  3. Only file a reply brief under these circumstances:

   a. if the opposing counsel cites a case not covered in the opening brief and you are able to show that it is not controlling or does not stand for the proposition asserted.

   b. if opposing counsel advances an important argument not covered by your opening brief and you have a convincing rebuttal to it.

   c. if relevant cases have been handed down since filing your opening brief.

   d. if opposing counsel has made a misstatement of fact or an irrelevant argument.[EN10]

Thus, Judge Aldisert makes a pretty solid case that attorneys should make all arguments as early as possible, as a matter of pragmatic advocacy.  With regard to citing and confronting adverse authority, however, some lawyers who write as movant, petitioner, appellant, will take pains to parse the language of Rule 3.3 to ascertain whether they are under an ethical mandate to disclose that authority.  This focus seems misplaced when it is contrasted with a common-sense analysis of sound, lasting, and winning advocacy principles.

 As Hunt and Magnuson have discussed, the ABA Committee on Professional Ethics and Grievances identified three questions for attorneys to consider when deciding whether they must comply with Rule 3.3:
 

  (1) whether the decision is one the court clearly should take into account in deciding the case;
  (2) whether in failing to disclose the decision the lawyer, in the eyes of the court, would lack candor and would be viewed as acting unfairly; and
  (3) whether the court would consider itself misled by the lawyer.[EN11]

The second and third questions address the "you should because you are supposed to" argument.  The first question, however, is directly related to an attorney's intrinsic, and selfish, motivation, for disclosing adverse authority.

 Thus, while ethical rules warn that it is critical for an attorney during the presentation of an argument to be candid with the court, pragmatic considerations will ultimately convince the attorney to use such candor.  Every lawyer knows of facts in the case that may not support the client's position.  Moreover, every lawyer knows of a legal standard or argument that does not clearly support the client's position.  The point of selfish ethics is to face the worst enemies -- in the facts, and the law -- and weave them into the affirmative argument, to reach the desired result.  As we know, from history, and from current events, cover-ups cause more trouble than they are worth.

 Thus, the focus of the following analysis is on the first reason the ABA suggested an attorney should comply with Rule 3.3:  when a decision [or statute] is one the court clearly should take into account in deciding the case.  This particular reason to confront adverse authority is as important at the trial court level as it is on appeal. One textbook writer, Professor Roger S. Haydock, has recognized that written advocacy at the trial court level asks the judge to grant a motion because:
 

  1. Direct, established legal precedent exists.

   a. The facts match previous cases in which identical or similar relief was provided.
   b. The facts can be distinguished from previous cases in which relief was denied.

  2. Precedent from other jurisdictions supports a favorable ruling.[EN12]

Professor Haydock notes that the moving party should present a precise discussion of the legal authorities, choosing the authorities that have the most precedential value in the jurisdiction.  Professor Haydock then identifies some common problems that reduce the effectiveness of legal explanation in a motion argument, including:
 

  1. Inaccurate Descriptions -- where the arguments do not accurately describe the status of the law.
  2. Vague Explanations -- failure to clarify the status of the law.
  3. Incomplete Description -- the arguments may be correct and clear, but they also may contain incomplete statements of the law.

Judge Aldisert would add to this list:
 

  4. Absence of Authority -- failure to mention or properly cite adverse authority.
  5. Misrepresentation -- misrepresenting or exaggerating the adversary's arguments.
  6. Use of Bad Law -- citing cases that have been overruled. [EN13]
 

 Perhaps it is the cover-up mind that would parse so closely.  But it is also the mind that resists the complete victory that a favorable decision, based on complete disclosure of material facts and law, provides.  However, that mind may cease to resist acknowledging the presence of "bad news" if that mind has the opportunity and the role models that demonstrate the intrinsic value of confronting bad news directly.

II. How to handle adverse authority once you have decided to confront it.

 In this section, a discussion of textbook techniques for not only citing, but thoroughly confronting, adverse authority will be noted.  Following the overview of textbook techniques are two examples from student work, demonstrating the transformation from rough to final draft, of an argument handling adverse authority, directly and thoroughly.

 A. Textbook Techniques

 Professor Richard Neumann also recognizes the three primary reasons for directly confronting adverse authority:  1) the ethical rules require it, 2) a lawyer who ignores adverse authority is seen by courts as unreliable and unpersuasive, while the lawyer who speaks with candor is more easily trusted and respected by the bench, and 3) a lawyer who ignores adverse authority throws away  the opportunity -- often the only opportunity -- to give the court reasons for not following it. [EN14]

 Professor Neumann provides some pieces of advice for confronting adverse authority:
 

  1. Statutes

   a. If the authority is a statute, court rule, or administrative regulation, show that the provision was not intended to govern the controversy.
   b. Or demonstrate that it was intended to govern it, but without harm to your client.

  2. Case Law

   a. Distinguish the authority, focusing on significant and not merely coincidental differences between the precedent and your case.  Make sure the differences are important enough to impress a skeptical judge.

   b. Reconcile the precedent with your case, showing that, although the precedent seems superficially adverse, its underlying policy would actually be furthered by the ruling you want from the court.

   c. When the adverse authority addresses a question of first impression in your jurisdiction, attack the adverse precedent head-on, challenging its validity on the grounds that it is poorly reasoned or that changes in society or in public policy have made it unworkable.  Note that where local law has a gap and where the challenged authority is not mandatory, the judge must choose between competing out-of-state rules; the judge will not be able to decide without rejecting at least some precedent as ill-founded.[EN15]

   d. Formulate rules along a continuum from the broadest to the narrowest interpretation arguable from the facts and wording of the precedent.[EN16]  Two other textbook authors explain the significance of this tool:  select the interpretation that furthers your case.  Depending on the facts of your case, you will either interpret the decision's holding narrowly or broadly.[EN17]

The textbook principles are easy to recite and remember.  The tougher task is to use the principles.

 B. Illustrations

 Working through the conception and drafting of an argument that confronts adverse authority, an advocate must move through several stages of response, which are reflected in student responses to an exercise requiring mastery of adverse authority.  First, the student needs to be convinced that s/he should acknowledge the presence of adverse authority at all.  "Won't it cut back on the persuasiveness of my persuasive writing?"  Second, the student will say, "Okay, I'll cite the case.  Is it enough if I give it a 'but see' cite."  Third, once the student is convinced s/he must not only acknowledge the presence of adverse authority, but also directly confront it, the first draft becomes a defensive response to the presence of the adverse authority.  Fourth, during the conference and the redrafting stages, the student begins to recognize the utility and strength of fully confronting the authority and drafts some pretty persuasive advocacy, incorporating some of the textbook techniques identified above.

 I use examples from one of my third semester legal research and writing exercises, involving a brief in support of summary judgment in a hypothetical civil asset forfeiture case, to illustrate the third and fourth stages.[EN18]    The United States government routinely moves for summary judgment in such cases.  The party whose property was forfeited because it was connected to illegal drug activity often raises the "innocent owner" defense as now codified in 18 U.S.C. sec. 801(a)(4)(C).  The hypothetical is set in Arkansas, and the students are coached to focus on Eighth Circuit Court of Appeals authority for their argumentation.  In 1992, the Eighth Circuit decided a case that suggests summary judgment is never appropriate when the concept of "willful blindness" is at issue.  See United States v. One 1989 Jeep Wagoneer, 976 F.2d 1172 (8th Cir. 1992).  This case is directly contrary to the position the students must take when they file their motions for summary judgment on behalf of the United States, so they must directly confront the authority.

 They are coached to do so in several ways:  distinguish the case on its facts, import policy to explain why a broad interpretation of the Wagoneer holding is inconsistent with legislative intent in codifying the innocent owner defense, and import policy to explain why prior case law decided before the statutory amendment should also be relevant to the analysis.

 Here is a student's first attempt at this exercise:

¶ 1   The Eighth Circuit in United States v. One 1989 Jeep Wagoneer, 976 F.2d 1172 (8th Cir. 1992) developed a clear discussion of the concept of willful blindness.  The court emphatically stated the statutory language of (a)(4)(C), not the Calero-Toledo constitutional defense, was at issue.  Id.
¶ 2   In defining willful blindness, the Wagoneer court examined a civil tax fraud case to define the term "willful blindness" as "a mechanism for an inference [of knowledge], not . . . a substitute for knowledge."  Id. (quoting Mattingly v. United States, 924 F.2d 785, 791 (8th Cir. 1991)).  The Wagoneer court stated that an inference of knowledge may exist when a person "deliberately closes his eyes" to facts that would at any other time be obvious or shows a "conscious purpose to avoid enlightenment." Id. at 792.  The Wagoneer court held that, because willful blindness requires a determination of a mental state or intent, summary judgment is granted with caution because this type of issue raises a question of fact for the jury.  Id.  Because the Wagoneer claimants were monitoring, for signs of recurring drug use, the behavior of the person allowed to use the vehicle, and because that person also had access to another vehicle for personal use, the court reversed summary judgment in the government's favor.
¶ 3   The Wagoneer decision is detrimental to the United States' present motion for summary judgement.  Here, as in Wagoneer, the claimants assert they monitored their son's use of the vehicle.  They also stated, in their Claim of Ownership and affidavits, that their son was given another car for his exclusive use upon the transfer of title.  Furthermore, their affidavits state that their son was only allowed to use the vehicle with their permission.  Under the Wagoneer analysis, these facts raise an issue for the jury to decide as to the presence or absence of willful blindness.
¶ 4   The government does not dispute the Eighth Circuit's adopted definition of willful blindness.  The government does object to the Eighth Circuit's dismissal of the possibility of the presence of knowledge and consent being sufficient to warrant summary judgment.
¶ 5   The willful blindness language was added to the concepts of knowledge and consent in order to prevent owners from asserting a "look the other way" defense as part of innocent ownership.  Wagoneer, 924 F.2d at 1175.  It was intended to encourage owners to fully participate in the exercise of ownership over their property.  Id.  Legislative history demonstrates that Congress added the willful blindness element to cover the cases of individuals who have demonstrated "a conscious purpose to avoid the truth."  Id.
¶ 6   Thus, the government would like to note that cases prior the 1988 Amendment still provide viable precedent for comprehending the knowledge and consent elements of 21 U.S.C. § 881 (a)(4)(C).
¶ 7   In addition, it is important to note that summary judgment motions require the party who would bear the burden of proof on an element at trial to move beyond the mere allegations of their pleadings to establish the presence of a triable issue of fact.  Fed. R. Civ. P. 56(e).  The claimants have not moved beyond the mere allegations of their claim of ownership to establish a triable issue of fact on the innocent ownership defense.

Comments on this first draft:
¶ 1  The writer gives too much credit to the case he seeks to distinguish:  "clear discussion."  Then the writer, after assigning enhanced credibility to the decision, limits his ability to contract the meaning of the court's decision when he states "[t]he court emphatically stated . . ."

¶ 2  The writer emphasizes those aspects of the adverse authority that are contrary to the writer's advocacy position, which is to get a summary judgment and keep the case away from the jury:  "this type of issue raises a question of fact for the jury."

¶ 3  The writer demonstrates total fear of the decision with the direct statement, "The Wagoneer decision is detrimental to the United States' present motion."  The  writer proceeds to demonstrate how Wagoneer destroys the writer's advocacy position, by applying a broad interpretation of the Wagoneer holding to the hypothetical case facts.

¶ 4  The writer attempts to regain an affirmative advocacy position by using transitional language stating what aspects of the adverse authority he agrees with.

¶ 5  The writer provides legislative history in support of the position that "willful blindness" is not the only element of discussion under the innocent owner defense.

¶ 6  The writer hesitantly moves the reader to the next step in the logical chain:  "the government would like to note."

¶ 7  The writer invokes the procedural "hook" of Rule 56(e), but this hook would work more effectively if it appeared at the beginning of the analysis.  Placed at the end, the procedural point loses its force and seems to be an afterthought.

 Each of these observations is an observation that would apply to many first drafts in which attorneys seek to directly confront adverse authority.  The difficulty in successfully drafting an argument in the face of adverse authority is that the writer must first understand and be able to explicate why the authority is damaging, before the writer can see clear to demonstrate why the bad news is not so bad.  Thus, one of the reasons attorneys may resist confronting adverse authority is that a well-drafted analysis of such authority requires a two-layered analysis -- the why-is-it-bad analysis necessarily comes before the why-is-it-not-so-bad analysis.  A lawyer pressing a briefing deadline may not have the leisure to develop the second stage of the process.  For such lawyers, the "but see" cite to the adverse authority is preferable to a botched attempt at distinguishing the authority.

 However, the lawyer who has the time to thoroughly and logically confront the authority can create some solid advocacy.  A more final version of the Wagoneer argument, developed from several final drafts of the assignment, demonstrates this point.  In this version, the Wagoneer adverse authority loses much of its bite, in part because the procedural summary judgment argument appears early on, but primarily because the writer[s] have had the opportunity to grapple with the meaning of the adverse precedent and convert the "bad news" into good news for the government's advocacy position.[EN 19]

   Even if this court finds that the claimants have standing to challenge the forfeiture, the claimants still bear the burden of proving a defense to the forfeiture action.  The claimants' only defense is that they were innocent owners under 21 U.S.C. § 881 (a)(4)(C).  However, the claimants have not established a triable issue of fact on this defense; therefore, summary judgment is proper.
   The innocent owner defense is codified and provides in pertinent part:

    no conveyance shall be forfeited under this paragraph to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge, consent, or willful blindness of the owner.

As these examples illustrate, a decision to directly confront adverse authority is a decision to engage in some careful analysis of the authority, an analysis that would not be required if the attorney chooses a "but see" cite or no citation at all.  However, the potential for converting the authority into an ally, or at least into a powerless enemy, is present in every bit of bad news that confronts attorneys.  This discussion proposes that challenge is worth seizing.

 * * *

 Endnotes

1. A survey of the law review literature on a lawyer's duty to disclose adverse authority produces several articles that carry out the "you should" theme.  Two brief articles set out the relevant sections of the Code of Professional Responsibility and the Rules of Professional Responsibility.  See Stewart Howard, The Duty to Cite Adverse Authority, 16 J. Legal Prof. 295 (1991); David Parker, Guidelines for Litigators, 348 PLI/Lit 213 (1988) (cataloguing several relevant trial practice ethical rules, including those that focus on adverse authority).
 More ambitious articles outline the relevant rules, discuss the implicit standards, and/or provide summary of case law discussing rules violations. See e.g., Christopher W. Deering, Candor toward the Tribunal:  Should an Attorney Sacrifice Truth and Integrity for the Sake of the Client?, 31 Suffolk U. L . Rev. 59 (1997); Angela Dawson Terry, Student Note, What's a Lawyer to Do?:  The Tension between Zealous Advocacy and the Model Rules of Professional Conduct, 21 Am. J. Trial Advoc. 357 (1997); Daisy Hurst Floyd, Candor Versus Advocacy:  Courts' Use of Sanctions to Enforce the Duty of Candor toward the Tribunal, 29 Ga. L. Rev. 1035 (1995) (discussing courts' use of Fed. R. Civ. P. 11 and 38 to enforce the duty of candor set out in Model Rule 3.3).

2. Kay Nord Hunt & Eric J. Magnuson,  Ethical Issues on Appeal, 19 Wm. Mitchell L. Rev. 659 (1993).

3. In re Arkansas Bar Ass'n, 276 Ark. 495, 496, 702 S.W.2d 326, 367 (1985) (emphasis supplied), amended 293 Ark. 661, 741 S.W.2d 250 (1987) (Rule 1.6); Howard W. Brill, Arkansas Professional and Judicial Ethics, (M&M Press 4th ed. 1997) at 119-25.

4. In re Arkansas Bar Ass'n, 287 Ark. at 496, 702 S.W.2d at 367-68; Brill supra at 120-21.

5. Hunt and Magnuson, supra note 2 at 673.

6. Lassiter Constr. Co. v. American States Ins. Co., 669 So.2d 768, 770 n.3 (Dist. Ct. App. Fla. 4th Dist. 1997) (affirming lower court's judgment but recognizing losing counsel's ethical conduct in citing adverse authority).

7.  See e.g., City of Shullsburg v. Monahan, 582 N.W.2d 505 (Table), 1998 WL 224904, 3 (Wis. Ct. App. 1998) (stating, "[t]his is not the first time that counsel's firm has been warned that briefs may have violated the canons of ethics. . . . An attorney does not help his or her client either by violating [Rule 3.3] or by closely skirting that rule.  We anticipate that in the future, counsel will more carefully craft arguments that will recognize precedent directly adverse to his position). Dorso Trailer Sales, Inc. v. American Body & Trailer, Inc., 464 N.W.2d 551 (Minn. Ct. App. 1991) (holding dealer was entitled to relief from judgment based upon conduct of manufacturer's former counsel in failing to disclose existence of motor vehicle franchise statutes and in misrepresenting current status of law to trial and appellate courts) aff'd in part and rev'd in part, 482 N.W.2d 771 (Minn. 1992) (reviewing manufacturer's counsel's ethical violations but holding that district court lacked subject matter jurisdiction to vacate satisfied judgment and second action was barred by res judicata).

8.   See Trimble v. State, 316 Ark. 161, 871 S.W.2d 562 (1994) (rejecting criminal defendant's argument that he was entitled to new trial because prosecutor had introduced "false evidence" in violation of Rule 3.3(a)(4) when the prosecutor stated in closing argument that defendant's version of the crime was a lie); Fitzhugh v. Committee on Prof. Conduct, 308 Ark. 313, 823 S.W.2d 896) (1992) (issuing a letter of caution to attorney for violation of 3.3(d), for failure to inform the tribunal of all material facts in an ex parte proceeding).

9.  See supra note 7 and supra note 1 for case authorities on point.

10.  Ruggero J. Aldisert, Winning on Appeal:  Better Briefs and Oral Argument at 254-55 (1st ed. NITA 1996).  Judge Aldisert also states that a reply brief should be filed if opposing counsel has raised a question of jurisdiction not covered in the opening brief, an item that does not neatly fit into the "disclosure of adverse authority" theme of this discussion.

11.  Hunt and Magnuson supra note 2 at 674 (citing ABA Comm. on Professional Ethics and grievances, Formal Op. 280 (1949)).

12.  Roger S. Haydock et al., Fundamentals of Pretrial Litigation (West 3d ed. 1994) at 574. Professor Haydock identifies other bases a movant may  use to request the judge to grant a motion, including precedent that applies by analogy, the presence of a question of first impression, persuasive legislative history, rules of statutory construction, and favorable agency rulings.

13.  Aldisert, supra note 10 at 23-24.

14.  Richard K. Neumann, Jr., Legal Reasoning and Legal Writing (Aspen 3d ed. 1998) at 282-83.

15.  Neumann, supra at 283-84.

16.  Neumann, supra note 14 at 128-29.

17.  Nancy L. Schultz and Louis J. Sirico, Jr., Legal Writing and Other Lawyering Skills (Matthew Bender 3d ed. 1998) at 252-53.

18. A predictive writing version of this assignment is published in Jan M. Levine with Kathryn A. Sampson, Analytical Assignments for Integrating Legal Research and Writing (Adams & Ambrose 1991, 1993).

19. This sample represents my compilation and synthesis of excellent work written by James Estes, Kevin Jones, and Stephanie Irby, members of the University of Arkansas School of Law Class of 2000, and members of my Legal Research & Writing III course during the summer of 1998.