In the adversarial system, who wins in a court proceeding basically depends on how the parties present and argue their cases. That is, the same facts and evidence could yield diametrically opposite results depending on who the parties were, how determined they were to win, how prepared they were, how quickly they think, in what mood or state of health they were in etc. etc. (Who the judge was is also a big factor, but this is true in the inquisitorial system too.)

Yet court decisions become precedents that lower courts are bound by. That is, if a someone lost a case merely because they did not come up with an argument which, should they have come up with, would convince the judge to rule in their favour, and that case has become a precedent, the fate of any following cases in lower courts with comparable facts will be decided by that unluckily slow-thinking litigant/lawyer.

How is that considered coherent / just / fair? Isn't the rule of precedent inherently flawed in the adversarial system?

(I accept this question has a flavour of politics and hence may belong to Politics.SE).

  • 1
    Low quality defense attorneys are a failure to themselves not the justice system, unfortunately incompetence is present in almost all fields.
    – Neil Meyer
    Jun 30, 2021 at 18:12
  • @NeilMeyer I would accept to blame just lawyers' incompetence if cases run by lay litigants were not allowed to become precedents. They are.
    – Greendrake
    Jun 30, 2021 at 19:12

3 Answers 3


Short Answer

The concern raised is a real one, but it is much less serious than one might naively expect.

Long Answer

Precedents Apply Only To Resolve The Legal Arguments Presented On The Facts Found To Exist At Trial

A Bad Lawyer's Failure To Develop Facts At Trial Isn't A Serious Problem

A precedent determines the law as applied to a particular set of facts found by the trial court and confirmed as properly in the trial court record by the appellate court, as to a particular legal issue.

Failure to prove facts at trial due to the fault of counsel for a party in the trial court changes the scope of the precedent. Failure to establish facts in one case that sets a precedent, doesn't prevent a similarly situated party, in a case with essentially the same actual facts, from doing a better job and thus presenting a set of facts that are not governed by the same precedent. The precedent from the ill argued case would not apply because the facts as found by the trial court would be different.

A Bad Lawyer's Failure To Present Legal Arguments Isn't A Serious Problem

if a someone lost a case merely because they did not come up with an argument which, should they have come up with, would convince the judge to rule in their favour, and that case has become a precedent, the fate of any following cases in lower courts with comparable facts will be decided by that unluckily slow-thinking litigant/lawyer.

Likewise, suppose that due to incompetence of counsel, a key legal argument isn't made. When a trial court lawyer makes that mistake, the precedent will merely resolve the legal arguments that were resolved by the trial court. This won't preclude a future litigant from making different legal arguments that are stronger in the same circumstances since the precedent won't resolve those legal arguments.

For example, suppose that a trial, a lawyer for one side fails to argue that the statute of frauds (which requires certain contracts to be in writing) bars the claim, and the judgment in favor of other other side on an oral agreement is upheld on appeal.

A lawyer in a new case with the same facts can move to dismiss the other side's claim based upon the statute of frauds, because the precedent upholding the oral agreement didn't resolve the question of whether the statute of frauds could be used to dismiss the claim arising under that agreement.

There Aren't Better Alternatives To Sift Through Legal Arguments

No lawyer can make every argument. The incentives of the system and the professional regulation of lawyers, however, increases the likelihood that the strongest arguments will be made to the court setting the precedent and in the trial court before an appellate court considers the issue, relative to pretty much any other means of clarifying ambiguous issues in the law, where the advocates for different legal rules usually don't have the same strong incentives to argue their cases as well as they possibly can.

The Risk Posed By Ineffectual Rhetoric In Favor Of Good Rules Of Law Is Real But Limited

This doesn't mean that bad lawyering doesn't give rise to bad precedents. But when this happens it is usually because for a given argument and set of facts, the lawyer for one side is so much more rhetorically effective in making a legal argument than the lawyer for the other side which is proposing a "better rule" of law. But the exclusion of people who can't finish law school and pass the bar exam from the process makes a truly decisive advantage for one party over another in rhetorical effectiveness fairly rare.

To the extent that rhetorical failure in appellate briefing is the cause of a bad precedent, the long term systemic effect of this problem (some would call it a feature of the system rather than a flaw) is that the side with more resources that can afford to hire better lawyers will tend to produce legal results that favor similarly situated parties going forward. Thus, it produces a sort of diluted "natural selection" effect (a bias that is equally, if not more concerning, in the duel of lobbyists for all sides of an issue in the legislative process).

The other safeguards discussed below, limit this risk, although not completely.

Other Safeguards

Subject-Matter Jurisdiction

The requirement of an actual "case and controversy" for subject-matter jurisdiction, and the requirement of "standing" for subject-matter jurisdiction are designed to prevent someone from intentionally making straw man arguments on appeal that produce precedents that are bad law.

Thoughtful Appellate Judges When Opinions Are Published

Also, appellate court precedents are made by a panel of multiple (usually three at the first direct appeal level) experienced and esteemed judges who are acutely aware that the decisions that they are making in precedent setting cases influence the law in other cases which causes them to look beyond the arguments of the parties to resolve the dispute. It isn't at all uncommon in such cases for an appellate court to resolve a case on appeal on the basis of arguments not made by either party in their briefs, or precedents or statutes not mentioned by either party.

Furthermore, most appellate court decisions are unpublished opinions that expressly determined by the panel making the decision not to make a binding precedent, which allows panels of judges in these cases to take less care to run afoul of the risk of making a bad decision due to bad lawyering by a party. So, in the minority of cases that are published and create binding precedents, judges are especially careful to consider this risk.

Five More Safeguards

The other main safeguards in the case law system against bad precedents due to poor lawyering by a party are:

(1) the ability of uninvolved third-parties to file amicus briefs in connection with an appeal presenting perspectives on legal issues not presented by a party,

(2) the ability of a state supreme court or the U.S. Supreme Court (or both) as the case may be, to overrule intermediate appellate court precedents that were wrongly decided,

(3) the ability of legislatures to change non-constitutional legal rulings by statute,

(4) the procedural requirement that the relevant state or federal attorney general be given notice and an opportunity to intervene in cases challenging the constitutionality of a law, and

(5) the ability of the political process to amend the relevant constitution to address a bad binding precedent by a highest court on a constitutional issue that the legislature cannot fix.

Collectively These Safeguards Help Somewhat

None of these safeguards are fool proof.

But, collectively, these safeguards reduce the risk of a bad precedent being established due to bad lawyering in an adversary system, that the inherent limitation of a precedent being limited to particular facts and particular legal arguments provides as a primary means of preventing.

Other Causes Of Bad Precedents Are More Of A Problem

In general, once all of the considerations above are taken together, the risk of a bad precedent being made due to bad lawyering, while it is real, is significantly smaller than the risk that a bad precedent will be made because the appellate judges rendering the precedent making opinion are bad judges. Bad judges usually end up as judges with appellate precedent making power because they were selected more based upon political considerations, as they are in many states, and in the federal system, rather than primarily based upon the soundness of their legal judgment.

When one risk factor that can lead to a bad decision is much larger than another risk factor that can lead to a bad decision, further improvements in the smaller risk factor will rarely make all that much of a difference in the overall likelihood that the system will produce a bad precedent. So, the adversary system, is, on balance, good enough make the risk of bad precedents arising from bad lawyering a not very troubling problem with the system, even though it is a real risk that sometimes does produce bad precedents.

  • What is your source/authority for "This won't preclude a future litigant from making different legal arguments that are stronger in the same circumstances since the precedent won't resolve those legal arguments." — for which you give the statute of frauds example? Wherever I read about the rule of precedent / stare decisis, similarity of facts is all that is needed for a precedent to apply — there is no requirement as to similarity of legal arguments on top of that. This is the core of the question basically.
    – Greendrake
    Jun 30, 2021 at 23:57
  • @Greendrake It is inherent in how the system works. When you cite to a case you cite to its holding on a particular legal issue in the context of certain facts. You don't cite to the outcome of the case on a particular set of facts. Indeed, one common citation signal is "reversed on other grounds" where you cite to an intermediate appellate court's ruling on a legal issue, even though the overall decision of the court case you are citing to as a precedent was reversed. The unreversed holding can still be good law even though the decision as a whole was reversed.
    – ohwilleke
    Jul 1, 2021 at 20:35

Because similar situations should have similar consequences

Surely that’s fair?

It would be profoundly unjust that you and I could perform a similar act in similar circumstances and you go to jail for 6 years and I get acquitted.

Unless, of course, my lawyer is clever enough to distinguish may case from yours or convince an appeals court that your case was wrongly decided and overturn the precedent.

However, if we are in an inquisitorial civil law system where reasoning is from first principles in each case. There we get a different form of fairness, instead of looking at what appeals court judges have decided in similar circumstances, we get to argue from the beginning calling on legal academics and philosophical principles.

Precedent aims to provide fairness in consistency across cases; civil law aims to provide fairness in justice for individual cases.

  • "convince an appeals court that your case was wrongly decided" — not an option if it was decided rightly on the arguments presented in it. Surely your lawyer would have argued it much better, but now it is a precedent not distinguishable from your present case.
    – Greendrake
    Jun 30, 2021 at 11:13
  • In which case “convince the court the case was wrongly decided”. In any event, if my lawyer raises points of law that are different from your lawyers, she’s distinguished it.
    – Dale M
    Jun 30, 2021 at 11:16
  • 1
    convince the court the case was wrongly decided” — what's the use if that case was decided in a higher court and is now binding regardless? "if my lawyer raises points of law that are different from your lawyers, she’s distinguished it" the Wikipedia article you've linked says the facts need to be materially different, not the points of law raised.
    – Greendrake
    Jun 30, 2021 at 11:47
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    "similar situations should have similar consequences" — absolutely, but the whole point of the question is that consequences are functions not only of situations, but also of how they happened to be argued. It's the latter that casts shadow on the fairness of the rule of precedent.
    – Greendrake
    Jun 30, 2021 at 13:42
  • @Greendrake Do consider that bad arguing affects which precendent is set. Mr Smith stupidly didn't mention his exonerating evidence? Well, you can now say your case is different to Mr Smith's because you have exonerating evidence and he didn't.
    – user253751
    Jun 30, 2021 at 15:32

The "rule of precedent" is not described accurately in the question. A definition can be found in Kempin, Precedent and Stare Decisis: The Critical Years, 1800 to 1850 (1959) 3(1) American Journal of Legal History 28:

The modern doctrine of stare decisis as applied in the United States is a general policy of all courts to adhere to the ratio decidendi of prior cases decided by the highest court in a given jurisdiction, as long as the principle derived therefrom is one that is still consonant with reason, was necessary to the decision of the prior case, and was brought to the attention of the prior court by argument.

The article cites for a "modern English understanding of the doctrine" Elias, Colonial Courts and the Doctrine of Judicial Precedent (1955) 18 Modern Law Review 356:

The English theory of judicial precedent is that a decision of a judge, once given, on a question of law binds both that judge himself and subsequent judges in lower courts to decide the same question in a similar manner. But any judgment of any court is authoritative only as to that part of it, called the ratio decidendi, which is the principle considered to form the real basis of the decision in question.

Contrary to your comment, "similarity of facts" is not all that is needed for a precedent to apply. A precedent provides a binding answer to a question of law, rather than determining what the court must do in a similar factual scenario. Therefore, the "inherent flaw" you have identified ("if a someone lost a case merely because they did not come up with an argument ... the fate of any following cases in lower courts with comparable facts will be decided by that unluckily slow-thinking litigant") does not exist.

  • "a binding answer to a question of law" would still often be found by the precedent-making judge based largely just on the parties' submissions. There is no requirement for judges in adversarial jurisdictions to do their own research: they resolve the case — as opposed to finding the truth. Bad submissions → bad answer to question of law → bad binding precedent. Given that the judge did not make mistakes in that the precedent will stand until overturned by the same of higher court. How is this not a flaw?
    – Greendrake
    Jul 1, 2021 at 10:53
  • I have explained why the conceptual flaw which you said "is the core of the question" does not exist. Of course, the system is imperfect and that is partly because of the role played by imperfect lawyers. @ohwilleke's answer explains many of the safeguards that mitigate this. Notably, appellate judges can do their own research and, in addition to being eminent lawyers in their own right, often have the assistance of very capable support staff.
    – sjy
    Jul 1, 2021 at 11:33
  • All judges can do their own research and apply reasoning beyond what was articulated by the parties. The issue is that they don't have to in the adversarial system. And hence they often do not. But I see your point: whether an "imperfection" is a flaw is basically offtopic here.
    – Greendrake
    Jul 1, 2021 at 11:46

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