Tuesday, February 3, 2015
Should I Cite Unpublished Opinions?
Lawyers often struggle to decide whether to cite unpublished opinions. With Lexis, Westlaw, and other online resources, these opinions are widely available in a way they weren’t formerly. Some jurisdictions, including California, prohibit citing unpublished opinions. But even in California courts, parties can cite unpublished opinions from jurisdictions that permit citation to those opinions. See Harris v. Investor's Business Daily, Inc., 138 Cal. App. 4th 28, 34 (2006). Each jurisdiction’s rules are different, and as with all posts made here, you must always check the relevant rules to ensure compliance.
Even though unpublished opinions aren’t binding (except, apparently, in Ohio), they can add great value to a brief and are particularly persuasive in a number of situations.
First, you should seriously consider citing an unpublished opinion if the facts of the case in the unpublished opinion are spot-on and you’re advocating for the same result.
Second, you’ll likely want to cite a relevant unpublished opinion that was written by the judge (or panel) hearing your case.
Third, a relevant unpublished opinion written by a judge with the same judicial philosophy as the judge hearing your case may also be persuasive.
Fourth, you probably will wish to cite an unpublished opinion if it is the only relevant authority in the jurisdiction that addresses the question of law at issue in your case.
These aren’t hard and fast rules, and each case is different. But unpublished opinions can be persuasive and give the judge some legal authority to support ruling in your client’s favor.