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It appears quite common that when trying to find support for decision X, cases which in actuality finally rule against X are quoted, and very few cases which actually grant X can be found.

Why does this happen? Does it at all affect the outcome of existing cases, when someone quotes an older case trying to prove a point to obtain a decision X, where in actuality the final decision of such old cases were to finally rule against X?

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    Can you give an example please? – L235 May 29 '15 at 0:09
  • Do you mean when it's quoted by lawyers and judges, or when it's quoted by non-lawyers? – cpast May 29 '15 at 0:49
  • Basically, if you try to prove the point that a search was illegal, you might reference some past case that has the language and applicable discussion about circumstances where the search was illegal; however, if you look at the actual case being referenced, you might find that those circumstances weren't actually met, and in the case at issue, the search was actually found to be legal; this seems to be a very common scenario in all sorts of cases; I think it's just kinda funny that it's the way it is; and it might especially be confusing for someone new to law. – cnst May 29 '15 at 3:57
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    @cnst You should edit the question to make that clearer. In your example, the two X's are not the same; one is that search A was legal, and the other is that search B was legal, and there's no reason to suspect they have the same answer. – cpast May 29 '15 at 4:59
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In reaching any opinion, courts generally examine an area of law, looking at all elements of a cause of action which will naturally contain some points that can be argued in favor of either side. After a general discussion of what the law is, courts then apply the law to the facts of that case in reaching a final "who wins" decision in the case. A specific case may turn on a strict meeting of each of the elements in the case, or the court's reasoning may apply a broader brush basing their decision on the "totality of the circumstances" surrounding a case. (that is the way courts "fudge" a little bit in reaching a decision)

Even though a given decision may have gone in favor of the other side, adverse authority with a good statement of the law is every bit as good as favorable authority that contains only a cursory treatment of the law. When handling adverse authority, it is then up to you to show why the unfavorable decision is distinguishable from the facts of the current case and why the outcome should be different this time.

  • It's interesting that you place an accent on "distinguishable", whereas in reality, I've never seen any of the case law references actually mention the final outcome of any of the cases they mention, and, overall, it seems like the probability of favourable/non-favourable decision of the referenced case is like, perhaps, 50/50. – cnst May 30 '15 at 3:43
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The process you describe is an exceedingly common method of proving a point when there is not factually analogous precedent for that particular point. By way of over-simplified example, there may be precedent for the proposition 1 + 2 = 3, but there may not be equivalent precedent for the proposition that 6 - 4 = 2. An advocate might cite the former to support the latter, even though they are not entirely analogous. In the world of legal citation, this type of citation is usually indicated with cf.

Similarly, there may be a principle of law that is announced in a case that "goes the wrong way" that is nonetheless helpful to support the case of the person who, in this case is on the opposite side. So, again, in an over-simplified example, a court might announce that "the sky is green," and conclude that under the facts of the particular case, a particular result is warranted. Someone on the other side of the same issue might nonetheless argue that this case supports their position, based upon the facts of their case, citing to the conclusion that the sky is green.

This type of argument is much more effective when the opinion announcing the proposition is of significant precedential value -- e.g., an announcement of legal principles by a higher (or highest) court.

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    In reaching any opinion, courts generally examine an area of law, looking at all elements of a cause which naturally will contain some points that can be argued by either side. After a general discussion of what the law is, the courts then apply the law to the facts of that case in reaching a final "who wins" decision. Adverse authority with a good statement of the law is every bit as good as favorable authority that contains only a cursory treatment of the law. It is then up to you to show why the unfavorable decision is distinguishable from the facts of your case. – David C. Rankin May 29 '15 at 15:49
  • @DavidC.Rankin, great comment, you should probably post it as an answer! – cnst May 30 '15 at 0:37

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