When Precedent Lacks Power, Make the Judge Want to Decide in Your Favor

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BY DAVID J.S. ZIFF

Judge Jerome Frank once passed along some advice he’d received as a lawyer: “[T]he way to win a case is to make the judge want to decide in your favor and then, and then only, to cite precedents which will justify such a determination.”¹1 Jerome Frank, Law and the Modern Mind 102 (1930). Frank (1889 – 1957) was a judge on the United States Court of Appeals for the Second Circuit who played a leading role in the legal realism movement. Many lawyers likely hold a stronger view on the power of precedent. After all, stare decisis is the foundation of our judicial system. Judges are supposed to follow the law, like cases should be decided alike, etc. You’ve heard it all before.

Yet in Washington state, Judge Frank’s advice might be more relevant than you think.

In 2018, the Washington Supreme Court decided In re Pers. Restraint  of Arnold,²2 190 Wn.2d 136, 410 P.3d 1133 (2018). which interpreted and applied former RCW 9.94A.030(46)(b)(2012). After resolving that substantive question of statutory interpretation, however, the court went on to discuss an issue of judicial process with broader applicability: the concept of “horizontal stare decisis” in the Washington Court of Appeals. In other words: How should one division of the Court of Appeals treat precedential decisions from another division?

This question was presented because, in the decision on review, Division III had resolved the interpretive question by deferring to prior decisions from Division I and Division II.³3 In re Pers. Restraint of Arnold, 198 Wn. App. 842, 845-49, 396 P.3d 375 (2017). The various opinions from Division III (and there were four opinions from the three-judge panel) discussed and debated how much deference to give these prior decisions. The opinions referred to this concept as “horizontal stare decisis”—the term often used for the precedential weight afforded decisions from a court of equal hierarchical rank.

In Arnold, the Supreme Court rejected any such deference among the divisions.⁴4 190 Wn.2d at 148 (“We reject any kind of ‘horizontal stare decisis’ between or among the divisions of the Court of Appeals.”). The court explained that conflicts between or among divisions of the Court of Appeals “are resolved not by stare decisis within that court, but by review in our court.”⁵5 Id. at 149. And the court described the proper method for resolving disagreements between or among the divisions: “We recognize when there are conflicts in the Court of Appeals. We resolve them by granting review, not by telling the later panel to adhere to a decision of an earlier panel.”⁶6 Id. at 150. In conclusion, the court summarized its holding on the issue of horizontal stare decisis: “[O]ne division of the Court of Appeals should give respectful consideration to the decisions of other divisions of the same Court of Appeals but one division is not bound by the decision of another division.”⁷7 Id. at 154.

In the five years since the Supreme Court issued Arnold, the decision has been cited in 31 Court of Appeals opinions. Only a few of those citations refer to Arnold’s substantive statutory holding. Instead, nearly all the citations reference the Supreme Court’s rejection of horizontal stare decisis. Sometimes, of course, the Court of Appeals will cite Arnold when departing from the precedential decision of another division.⁸8 See, e.g., State v. Yusuf, 21 Wn. App. 2d 960, 970, 512 P.3d 915 (2022).

Other times, however, the Court of Appeals will note that it need not follow a prior decision from a different division—before explaining that it independently agrees with the prior decision anyway. For example, in State v. Vasquez, Division III noted that the issue before it had already been decided by Division II in State v. Teas. The Vasquez court acknowledged that “‘horizontal stare decisis’ does not apply between or among the divisions of the Court of Appeals.”⁹9 State v. Vasquez, No. 36281-7-III, 2020 Wash. App. LEXIS 3248, 15 Wn. App. 2d 1048 (Wash. Ct. App. Dec. 10, 2020) (unpublished). But it then explained: “We have examined Teas and are of the opinion that Division Two’s decision is clearly correct and we will follow it.”¹⁰10 Id.

From the outside, Arnold seems to be operating quite smoothly in the Court of Appeals. But two potentially complicating issues have arisen. First, nothing limits the logic of Arnold to decisions from different divisions of the Court of Appeals. Though the Arnold court generally explained its reasoning in reference to the divisions, the underlying statutes don’t distinguish between panel precedents and division precedents. For example, in rejecting horizontal stare decisis, the court relied on RCW 2.06.030(e), which discusses conflicts within the Court of Appeals.¹¹11 In re Pers. Restraint of Arnold, 190 Wn.2d at 149. But the statute refers to “substantive issues on which there is a direct conflict among prevailing decisions of panels of the court [of appeals],”¹²12 Id. (quoting RCW 2.06.030(e)) (alteration in In re Pers. Restraint of Arnold). not among the divisions.

This lack of distinction between divisions and panels has not been lost on the Court of Appeals. In a previous Write to Counsel column, written by my colleague Professor Ben Halasz, Division II’s Judge Rebecca Glasgow explained: “I am allowed to depart from other panels of the Court of Appeals, whether they’re in my division or not.”¹³13 Benjamin S. Halasz, “Coach the Court: Writing Tips from the Bench,” Write to Counsel, Washington State Bar News, Sept. 7, 2022, available at https://wabarnews.org/2022/09/07/coach-the-court-writing-tips-from-the-bench/ (emphasis added). Somewhat ironically, there may exist a conflict among the divisions regarding whether Arnold’s rejection of stare decisis applies only to decisions from other divisions, or whether it also applies to panel decisions within the same division. Division I and Division II have both asserted that a panel of the Court of Appeals is not bound by another panel “even in the same division.”¹⁴14 In re Marriage of Snider, 6 Wn. App. 2d 310, 315, 430 P.3d 726, 728 (2018) (Division I); see also State v. Smith, 17 Wn. App. 2d 146, 152, 484 P.3d 550, 554, review denied, 198 Wn.2d 1005, 493 P.3d 747 (2021) (Division II) (”And we are not even bound by decisions by different panels within our own division.”). Division III, on the other hand, has consistently phrased the rule as applying only to decisions from other divisions.¹⁵15 See, e.g., Dalton M, LLC v. N. Cascade Tr. Servs., Inc., 20 Wn. App. 2d 914, 954, 504 P.3d 834 (2022) (”Although we respectfully consider opinions from other Court of Appeals divisions, stare decisis of other Court of Appeals opinions does not apply to us.”).

Second, Arnold does nothing to clarify the task of the trial judge or the trial lawyer. At some point, one hopes, the Supreme Court will resolve all conflicts among panels of the Court of Appeals. But until that happens, trial judges and lawyers are faced with an impossible task. They are supposed to follow precedent from the Court of Appeals. But which precedent from which division? During oral argument in Arnold, justices on the Supreme Court seemed to disagree on this question. Justice Steven González posited that a trial judge faced with conflicting holdings from different divisions of the Court of Appeals need not follow the division in which the trial court sits. Counsel for the state agreed, responding that a lawyer faced with conflicting precedents from different divisions can pick “the most correct” decision.¹⁶16 Oral Argument, In re Pers. Restraint of Arnold, at 12:20, https://tvw.org/video/washington-state-supreme-court-2018011018/?eventID=2018011018.

But the late Chief Justice Mary E. Fairhurst expressed a different understanding: “I had always thought that the courts in the counties did need to follow the Court of Appeals decision of the division in which they sat. Is that incorrect? Or is there authority which specifically says that they don’t have to?” The government offered no authority either way for that proposition. The chief justice continued: “My own experience was that you are bound by the decisions of your division.”¹⁷17 Id. at 12:50.

All of this makes things quite difficult for a trial lawyer. If you’re faced with conflicting precedents, you have no clear rule for preferring one over the other, except perhaps the “rule” preferring precedent that favors your client.

But it gets worse. Let’s say you’re in the enviable position of having a clear precedential decision from the division of the Court of Appeals that covers your superior court. In the trial court, you’ve got it made. The trial judge needs to follow the sole precedential authority on the issue. But on appeal, you can still lose, not because the trial judge did anything wrong, but because the panel of the Court of Appeals decides to reject the precedential opinion you relied on.

This situation is not hypothetical. In David Terry Investments v. Headwaters Development Group, Division III reversed the superior court’s decision and remanded with instructions.¹⁸18 David Terry Investments, LLC-PRC v. Headwaters Dev. Grp. Ltd. Liab. Co., 13 Wn. App. 2d 159, 173, 463 P.3d 117 (2020). But the Court of Appeals made clear that the trial judge did nothing wrong: “The trial court properly adhered to the only controlling authority on this issue.”¹⁹19 Id. at 169. Unlike the trial court, however, the Court of Appeals was “not so bound.”²⁰20 Id. It departed from that controlling authority and therefore reversed the trial court’s decision.

Which brings us back to Judge Frank. Precedents come and go. In Washington state, unless you have clear, on-point authority from the Supreme Court, your precedent is only as strong as your Court of Appeals panel wants it to be. And that means the precedent itself is unlikely to drive the ultimate resolution of your case, at least if you anticipate an appeal after judgment.

Lawyers should therefore view Court of Appeals precedent through a more skeptical lens. Instead of simply finding and relying on “good” precedent, lawyers must ask themselves: Does this holding make sense? If the decision’s rule were challenged, would a different panel come to a different conclusion? How does the holding fit within the broader legal landscape in this area?

I have two pieces of advice when facing these questions. First, in addition to Court of Appeals precedents, make sure you have Supreme Court precedent on your side. I’m not just talking about specific holdings. You should also consider those holdings’ animating themes, policies, and approaches. You want to ensure that your on-point Court of Appeals precedents echo the broader notes of relevant Supreme Court doctrine. Don’t put your faith in specific fact-bound (and potentially outlier) holdings.

Second, where the law is shaky, put more weight on the facts—your narrative and theme for the case. Setting aside the technical complexities of the law, you want to ensure that your client’s version of the story is the one the court will want to adopt. A trial judge may choose between competing precedents. A panel of the Court of Appeals may choose to depart from prior decisions. In both instances, your brief should inspire the judges to choose your client. In other words, your brief should cause the judges “to want to decide in your favor.” Narratives, facts, and themes can make that happen.

NOTES

1.    Jerome Frank, Law and the Modern Mind 102 (1930). Frank (1889 – 1957) was a judge on the United States Court of Appeals for the Second Circuit who played a leading role in the legal realism movement.

2.    190 Wn.2d 136, 410 P.3d 1133 (2018).

3.    In re Pers. Restraint of Arnold, 198 Wn. App. 842, 845-49, 396 P.3d 375 (2017).

4.    190 Wn.2d at 148 (“We reject any kind of ‘horizontal stare decisis’ between or among the divisions of the Court of Appeals.”).

5.    Id. at 149.

6.    Id. at 150.

7.    Id. at 154.

8.    See, e.g., State v. Yusuf, 21 Wn. App. 2d 960, 970, 512 P.3d 915 (2022).

9.    State v. Vasquez, No. 36281-7-III, 2020 Wash. App. LEXIS 3248, 15 Wn. App. 2d 1048 (Wash. Ct. App. Dec. 10, 2020) (unpublished).

10.  Id.

11.  In re Pers. Restraint of Arnold, 190 Wn.2d at 149.

12.  Id. (quoting RCW 2.06.030(e)) (alteration in In re Pers. Restraint of Arnold).

13.  Benjamin S. Halasz, “Coach the Court: Writing Tips from the Bench,” Write to Counsel, Washington State Bar News, Sept. 7, 2022, available at https://wabarnews.org/2022/09/07/coach-the-court-writing-tips-from-the-bench/ (emphasis added).

14.  In re Marriage of Snider, 6 Wn. App. 2d 310, 315, 430 P.3d 726, 728 (2018) (Division I); see also State v. Smith, 17 Wn. App. 2d 146, 152, 484 P.3d 550, 554, review denied, 198 Wn.2d 1005, 493 P.3d 747 (2021) (Division II) (”And we are not even bound by decisions by different panels within our own division.”).

15.  See, e.g., Dalton M, LLC v. N. Cascade Tr. Servs., Inc., 20 Wn. App. 2d 914, 954, 504 P.3d 834 (2022) (”Although we respectfully consider opinions from other Court of Appeals divisions, stare decisis of other Court of Appeals opinions does not apply to us.”).

16.  Oral Argument, In re Pers. Restraint of Arnold, at 12:20, https://tvw.org/video/washington-state-supreme-court-2018011018/?eventID=2018011018.

17.  Id. at 12:50.

18.  David Terry Investments, LLC-PRC v. Headwaters Dev. Grp. Ltd. Liab. Co., 13 Wn. App. 2d 159, 173, 463 P.3d 117 (2020).

19.  Id. at 169.

20.  Id.