Getting an Appellate Court Off the Bandwagon

bandwagonThis post is one of a series on fallacies that I have run across in handling South Carolina appeals. One of these is the “bandwagon” argument in which one argues that the majority view is correct simply because it is the majority view. But majorities, even a majority of appellate courts, may be wrong.

This comes up when the South Carolina appellate courts face a novel  issue within the State and other jurisdictions are split. A tendency when discussing cases from outside South Carolina is to tout one side or the other as the majority view as if that alone is persuasive. It could be, if the majority is the majority for good reason. Yet it is the  reasoning that counts.

Chief Justice Toal’s treatise puts it this way: “Because courts generally do not want to ‘go out on a limb,’ they pay careful attention to what other jurisdictions have done. That having been said, simply because the majority of courts have chosen one approach does not mean that the minority rule will not be considered. Courts are concerned with whether persuasive authority has sound logical and policy bases. If so, then a well reasoned minority position may well overcome the sheer numbers of a majority position.”

The treatise advocates that the attorney go beyond string cites to spend time on the decisions’ reasoning. Doing so, Chief Justice Toal notes, may show that the cases are distinguishable enough to make the purported majority status vanish.

I was able to do this in a case that involved the proper measure of damages for negligently destroyed trees. Opposing counsel relied heavily on an ALR which purportedly showed that the weight of authority was against me. The decisions, however, had actually developed an exception to the general rule that the South Carolina Supreme Court found persuasive and applied. The case is Vaught v. A.O. Hardee & Sons, Inc., 366 S.C. 475, 623 S.E.2d 373 (2005).

Has anyone else overcome a majority rule? Please let us know how you did it. You can leave a reply or reach me at www.attorneyroberthill.com.

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