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What Is a Persuasive Precedent?

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  • Written By: Esther Ejim
  • Edited By: Kaci Lane Hindman
  • Last Modified Date: 23 November 2016
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A precedent is a term that is used in law to describe a situation whereby a court has made a decision in a case that other courts can use as a source of reference. Depending on the type of court, the precedent may either be binding or not. When the precedent is not binding it is considered to be merely persuasive, meaning that the decision of the court is not mandatory for certain courts. In such a situation the decision of the court in that case is merely considered to be a persuasive precedent.

The issue of what type of case law to use when preparing for a case is vital, because the right type of precedent can make or break a case since a court that falls within certain parameters is obliged to follow any mandatory precedents laid down by other courts, while it is in no way obliged to adhere to a persuasive precedent. As such, the burden is on the attorneys handling a case to conduct adequate research in order to discover the exact mandatory precedents, as opposed to quoting persuasive precedent that lacks the same type of impact. The only time when a court might decline to apply a mandatory precedent is when it is able to establish conclusively that the other court erred in its judgment.

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Situations where a persuasive precedent can be applied include cases that were decided by higher courts in other jurisdictions. For instance, in the United States, a lower court in one jurisdiction might consider the arguments raised in the determination of a similar case by a superior court in another jurisdiction, though that decision will not be binding on the lower court since it is merely persuasive precedent. On the other hand, mandatory precedents by higher courts in the same jurisdiction will be binding on that court unless the court can show that the judgment reached in those cases involved some sort of misapplication of the law.

Another situation where a persuasive precedent can be seen is a case decided by a lower court in the same jurisdiction. Such a decision might be considered by higher courts during the determination of similar cases, but they will not be binding, only persuasive precedent. Other sources include the writings of well-known and respected legal scholars in such items as law reviews and legal treatises.

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