Proposed rule on citing 'unpublished' opinions takes first step.

Litigants will be allowed to cite "unpublished" appellate rulings in all federal courts if a proposed rule is approved. At a hearing on April 13, an advisory committee of the U.S. Judicial Conference voted in favor of the rule.

Under the proposal, approved by the Advisory Committee on Appellate Rules, courts could still designate opinions as "unpublished." Rule 32.1 would not require courts to accept unpublished rulings as binding precedent but would require them to let parties use such rulings as persuasive argument.

According to annual reports by the Administrative Office of the U.S. Courts over the last five years, federal appellate courts have designated as unpublished about 80 percent of all opinions issued; many state courts also issue unpublished rulings. Although these decisions are not included in official case reporters, they are generally available on courts' Web sites or in online research databases. While most jurisdictions agree that the rulings are not binding precedent, 9 federal circuits and 22 states already allow parties to use them in some way. The Second, Seventh, Ninth, and federal circuits do not.

The Standing Committee on Rules of Practice and Procedure will take up the issue next, at its meeting this month. The proposed rule will also need approval by the full Judicial Conference and the U.S. Supreme Court to be enacted.

The controversial proposal prompted a large response from the legal community, including over 500 written comments from judges, attorneys, and interest groups. "In my experience, it's very unusual for there to be so many comments on a proposed rule," said Jim Rooks, senior policy research counsel with the Center for Constitutional Litigation in Washington, D.C. "A lot of the comments were very emphatic, especially the ones against the rule change."

Patrick Schiltz, the advisory committee's reporter, said in a summary of the hearing that a desire for consistency among the circuits was a factor in the rule's approval. "Conflicting rules have created a hardship for practitioners, especially those who practice in more than one circuit," he noted.

Richard Frankel, an attorney with the D.C. office of Trial Lawyers for Public Justice, said his organization supports the rule but also thinks it does not go far enough. "We believe that all appellate decisions should be published and should be given the weight of binding precedent," Frankel said. "Continuing to allow the issuance of unpublished decisions, even citable ones, increases the risk of inconsistent decision-making, creates a perception that courts engage in results-oriented decision-making, and distorts and impedes the development of the law."

Second Circuit Chief Judge John Walker disagreed, stressing in his committee testimony that the circuits have "historically been given autonomy" in setting their own rules. "While there may be salutory reasons to encourage the circuits to revisit their rules in light of technical innovations and the ready availability of unpublished decisions to litigants ... the matter properly should be left to the discretion of each circuit court," he said.

Seventh Circuit Judge Diane Wood also opposed the rule, questioning its proponents' distinction between a decision that is precedential and one that is merely citable. "If the cited order is the work product of our court, if we must study the facts to see if they are distinguishable from the case presently before us, if we must either follow the precise legal formulation found in the order or explain why we are not doing so--in short, if (as is inevitable) we must treat it as a full-fledged precedential opinion of the court, then it is a full-fledged precedential opinion of the court," she said.

Comments also disputed whether allowing citation of unpublished opinions would harm small firms and pro se litigants. Some argued that large law firms and government lawyers would use their extensive resources to bog down opponents with complex briefs citing obscure unpublished opinions.

But supporters of the rule said that because these decisions are already available in major legal databases, attorneys already include them in their research. Also, according to a federal statute that takes effect at the end of this year, the federal circuits must post all their decisions, whether "published" or not, on their Web sites, accessible without charge, so that even pro se litigants who do not have access to online databases can perform the same research.

Several of the ride's opponents noted that allowing citation would necessarily change the way judges approach the unpublished rulings that resolve most routine cases.

"Summary orders in the Second Circuit typically provide concisely reasoned explanations for the court's decision, but spare much of the tactual and procedural elaboration that would be necessary to permit application of the decision to other cases," Walker said. Making the opinions suitable for citation would require more preparation time and would unnecessarily tax already overworked judges, he added.

Stephen Barnett, a law professor at the University of California at Berkeley and a leading supporter of the rule, testified that the rule would not increase judges' or litigants' workloads: "If making opinions citable had even a slight fraction of the adverse effects predicted in comments from the four no-citation circuits, one would expect federal circuit judges in the other nine circuits to say so.... Nothing of the sort has been heard."