Watch your step with unpublished opinions

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You’ve got a thorny legal issue for which there is no published Wisconsin appellate decision. Or, you’ve got a relatively simple legal issue, but a unique set of facts which no published Wisconsin appellate decision has addressed.

So, diligent researcher that you are, you search. Nothing. You search again, this time in different jurisdictions. Still nothing. Undeterred, you search once more, this time in different sources. Just as your eyes start to roll back into your head, you find it. The perfect case. The one that will win that motion or, better yet, that case. And then you see it. The word that plays us researchers for fools -“Unpublished.”

You may laugh at the suggestion that legal research, the drollest of tasks to most lawyers, has elements of drama (and melodrama). However, the payback for those hours of methodic searching and key number skimming is the rare, prized “gotcha” case. But if that “gotcha” case isn’t published, can you use it? Or must it remain a ghost, even to the court? The answer, as always, is “it depends.”

To the extent unpublished decisions can be cited, they are not binding precedent, but persuasive authority. Still, persuasive authority can be highly influential, especially where a dearth of comparable published decisions exists and the decision precisely addresses the issue before the court.

Unpublished opinions from all jurisdictions can be cited for purposes of res judicata, collateral estoppel, or law of the case. The issue here is whether and when unpublished opinions can be cited, not for those purposes, but to advance a legal or factual argument in a different case/setting.

Section 809.23, Wis. Stats. governs the citation of unpublished Wisconsin appellate court decisions. Unpublished appellate court decisions before July 1, 2009 cannot be cited, even as persuasive authority. Unpublished decisions from and after July 1, 2009 can be cited as persuasive authority, but only if they are authored decisions from three-judge panels or a single judge under Sec. 751.31(2), Wis. Stats. Per curiam opinions, memorandum opinions, summary disposition orders or other orders that are not authored opinions cannot be cited. A copy of the case must be submitted with the document referring to it. See also Wis. Stats. Secs. 809.19, 809.62, regarding appendices and document certifications The court need not discuss or distinguish an unpublished opinion in its decision, and there is no affirmative duty to research or cite unpublished opinions.

For unpublished decisions from other states, each state’s appellate rules must be reviewed to determine that state’s citation rules.

In the federal system, under Federal Rule of Appellate Procedure 32.1, unpublished decisions from and after January 1, 2007 may be cited as persuasive authority. Again, a copy of the case should be submitted with the underlying citing document.

For federal cases before January 1, 2007, each circuit’s circuit and district court rules should be consulted to determine whether an opinion may be cited and, if so, the conditions of its citation. The Seventh Circuit, for example, which divides its rulings into opinions and orders, prohibits the citation of orders before January 1, 2007, except for claim preclusion or law of the case purposes. Circuit Rule 32.1(d). The Eastern District of Wisconsin rules, for their part, do not prohibit the citation of unreported or non-precedential opinions (subject to federal appellate and circuit rules 32.1). See Civil L. R. 7(j) and Committee comments.

A useful research starting point, which includes a circuit rule chart (as of the article’s March 9, 2007 date), is “Citing Unpublished Federal Appellate Opinions Issued Before 2007,” by Robert Timothy Reagan of the Federal Judicial Center, which can be accessed at http://ftp.resource.org/courts.gov/fjc/citrules.pdf.

On a related note, a new trap for the unwary exists as to what have historically been characterized as partially overruled appellate decisions. In the past, practitioners could and did rely on those portions of such decisions which were not overruled, stating, in the subsequent history citation, “overruled on other grounds….” However, as of the Wisconsin Supreme Court’s decision in Blum v. 1st Auto & Casualty Insurance Company, 2010 WI 78, __ Wis. 2d __, 786 N.W.2d 78 (July 14, 2010), when the Supreme Court overrules a Court of Appeals case, even based on only one ground, that case is overruled in its entirety, unless the Supreme Court expressly leaves a portion intact. As such, the overruled case loses all of its precedential value.

As they say, everything old is new again.

Diane Slomowitz is a shareholder with the law firm of Fox, O’Neill & Shannon, SC in Milwaukee. She concentrates her practice on legal research, legal writing and appellate brief writing for the firm’s business and individual clients. Diane can be reached at 414-273-3939 or [email protected].