Imagine that you are an attorney, litigating an appellate case with an atypical fact pattern. You are familiar with the law; however, its application to your client's circumstances is entirely unclear. After endless hours of research, you finally find it: a factually apposite case with a favorable outcome. Elated, you grab your legal pad to scribble down the case citation. But then you see it-that dreaded text at the top of the opinion: "NOT SELECTED FOR PUBLICATION." This is an unpublished opinion. Perturbed and exhausted, your mind starts racing: "What's that rule again? Can I use this? I think that one attorney cited one in his brief with no problem. Or no, was that somewhere else?"
The ambiguity and confusion surrounding the usage of unpublished opinions is pervasive throughout state appellate courts, especially with more states each year amending their own practices. Where some jurisdictions flatly prohibit citation to unpublished opinions, others value them no differently than their published counterparts. Even murkier are the jurisdictions that govern the use of unpublished opinions through conflicting formal and informal rules. The maze of clashing policies throughout state appellate courts has fostered uncertainty and arbitrariness in the administration of the law. The result is public distrust of the judiciary, lost precedent, and unintended language emerging as precedential law.
Wood, Lauren S.
"Out of Cite, Out of Mind: Navigating the Labyrinth That is State Appellate Courts' Unpublished Opinion Practices,"
University of Baltimore Law Review: Vol. 45
, Article 6.
Available at: http://scholarworks.law.ubalt.edu/ublr/vol45/iss3/6