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Petition seeks ability to cite unpublished opinions

The Wisconsin Judicial Council has resurrected the debate over citation of unpublished opinions from the Court of Appeals. In May 2003, the state Supreme Court in a 4-3 decision rejected a plan to allow attorneys to cite unpublished opinions.

On Jan. 25, the council submitted a new proposal to the Supreme Court, asking it to allow citation of those opinions for their persuasive value. The new plan, urging an amendment to Wis. Stat. Sec. 809.23(3), would not allow citation for precedential value.

Instead it states: “Because an unpublished opinion cited for it’s persuasive value is not precedent, it is not binding on any court of this state, and a court need not distinguish or otherwise discuss it.”

In notes supporting that petition, the council pointed to the electronic availability of unpublished opinions. The group also referred to the federal rules which eliminated restrictions on the citation of unpublished federal court opinions.

The state Supreme Court last considered a petition to allow citation of unpublished decisions as persuasive authority back in 2003. Initially, the court tentatively approved the measure. However, Justices Jon P. Wilcox and William Bablitch ultimately joined Justices Diane S. Sykes and Ann Walsh Bradley to defeat the proposal.

Three of those opposed to citation of unpublished opinions – Sykes, Bablitch and Wilcox – no longer serve on the court.

2 comments

  1. This proposal is designed to drive up the costs of lawsuits and appeals, force attorneys to do far more work to avoid malpractice claims and will leave small law firms at a disadvantage. It’s a bad idea that should be defeated as it was in 2004.

    If citation to unpublished opinions is allowed, attorneys will have to review the limited published case law and the thousands of unpublished opinions issued or be guilty of malpractice. Taken further, an attorney may be required to search not only Wisconsin unpublished opinions, but federal ones and ones from other states.
    These opinions may be on the net, but are they really searchable in a useful way or are they simply sitting there in almost useless PDF form?

    Why would the court want to impose such an onerous burden on attorneys? Has the Judicial Council considered the fiscal impact this would have on attorneys and their clients? Apparently not. Most unpublished opinions are the equivalent of judicial junk. Written to decide a case, they were never meant to be cited as “persuasive” or “precedential” authority. If citation to these opinions is allowed the costs in time and effort in lawsuits could easily double. Just because the Federal courts have begun in engage in this folly is now reason for the State of Wisconsin to leap off the edge of the cliff too. Mindlessly following Federal procedure is bound to make litigation in Wisconsin far more expensive than it is today. On that basis alone this proposal should be defeated, because the fiscal impact on lawsuits has yet to be mentioned, much less addressed.

  2. Citation of unpublished opinions is an excellent idea. This Rule was adopted before the dawn of the digital era as we know it today and I submit is now totally antiquated.

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