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Citation of unpublished opinions would lead to bluer skies

By: dmc-admin//February 25, 2008//

Citation of unpublished opinions would lead to bluer skies

By: dmc-admin//February 25, 2008//

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It’s time for a change in the weather — and we’re not referring to winter (although I wouldn’t mind a change on that front, too).

On Jan. 25, 2008, the Wisconsin Judicial Council filed a petition with the Supreme Court to amend Wis. Stat. §(Rule) 809.23(3), which prohibits citation of unpublished opinions from the Court of Appeals. While not uniquely a family law issue, the rule affects many cases in this area of practice and is worthy of discussion in this column.

As frequent readers of this column are aware, I have been critical of this rule for years. Therefore, the Judicial Council is to be applauded for once again attempting to have it corrected. While previous attempts have failed, perhaps reason will prevail this time around.

The issue is perhaps more important in family law due to the increased importance of resolution by settlement. Especially where there are children, even when they are adult children, strife between parents is inimical to their well-being. Litigation is the highest degree of strife in the legal system.

Allowing citation to unpublished opinions will promote settlement by affording lawyers an important tool: precedent. One frequent settlement technique is telling a client the experience of having litigated a certain issue before a certain judge. If a client knows the probable result of litigation, the rational choice (and most clients react rationally) is to settle for that result, rather than expend the substantial costs of litigation to arrive at the same result the hard way. The critical factor is the knowledge of the likely result.

The same settlement technique can be used by allowing citations to unpublished decisions. If both parties know the likely result of an appeal and — this is key — they know that the trial court will also know the likely result because an unpublished case can be cited, they are likely to forgo the costs of getting there the hard way and reach a settlement.

The arguments against citations to unpublished decisions are not persuasive. While such decisions are supposed to be nonprecedential, any lawyer who has practiced more than a few years knows of unpublished cases that would aid in resolution of disputes. The difficulty of locating such cases has entirely been removed by the ease of searching for opinions on the court Web site.

The absurdity of the current rule can be exhibited by a simple experiment. Imagine yourself as a lawyer meeting with a lay client who has a case on appeal. Then, imagine explaining to the client that you cannot tell the court of appeals that they have already decided the issue. The clients asks: “Let me get this straight — the same court decided this issue, but it’s a secret even from themselves?”

Chief Justice Shirley Abrahamson perhaps stated it best. The last time a proposed rule change came before the court, noting that allowing publication of unpublished decisions will not cause the skies to fall, she stated in a dissenting opinion that, if the proposed rule was adopted: “…[I]t may even cause the sky to appear brighter and bluer as the cloud casting a shadow over the technological advances and covert reliance on unpublished opinions in Wisconsin will be lifted, allowing the sun to shine through.” 2003 WI 84, ¶80.

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