You don't need to point out the obvious to a court. You especially don't need to belabor the point.
When your opponent cites a non-binding case—say, an unpublished case, or a case from a different jurisdiction—it's tempting to latch onto that fact. You may want to repeatedly point out to the court that the case is unpublished, or that it's from some strange state called “New York.” (Sorry to New York practitioners). But the judge knows that. I promise you that they haven't mistaken a case from the N.Y. App. Div. for some case from their state's highest court.
Instead, recognize that the case exists and tackle it head-on. The court wants to see you address the case on its merits, not on its publication status or its jurisdiction. Judges trust other judges, even when they're writing an unpublished case, and even if they're from another state. You need to explain why the seemingly adverse ruling of this intelligent jurist is inapplicable to your case.
To be clear, sometimes you have no other choice than to rely on a case's publication status or its jurisdiction. In some scenarios, the case is truly on-point and there's no credible way to distinguish it. (I say “credible” because every case can be factually distinguished in some way—but not all distinctions are material, and you shouldn't burn credibility by emphasizing a frivolous distinction.) In these situations, you'll need to explain that the case is non-binding, and why the intelligent jurist there got it wrong (without attacking their competence).
But those situations are rare. More often, there is a good basis for distinguishing an unpublished or non-binding case. But if you can't, your judge will be inclined to side with a court that has already considered the issue and come out against you. That isn't a guaranteed outcome, of course; judges still want to decide the cases for themselves. But having precedent against you certainly puts a thumb on the scale if you can't distinguish it.
So, next time you really want to tell the court that a case is non-binding, I encourage you to suppress that instinct. Courts won't miss your snarky parenthetical.
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