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Lifting the artificial veil

By: dmc-admin//October 27, 2008//

Lifting the artificial veil

By: dmc-admin//October 27, 2008//

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The Wisconsin Supreme Court has taken an important step in lifting the artificial veil that has existed since the state Court of Appeals was created 30 years ago. With a 6-1 vote, the justices have decided to allow lawyers to cite unpublished Court of Appeals decisions.

For three decades, lawyers who found unpublished Court of Appeals decisions that were on point for the arguments that they were making on behalf of their clients had to ignore the fact that the court already had ruled on those issues. And the court had to ignore the fact that it already had addressed the issue.

As of July 1, 2009, that artificial veil will be lifted … partially.

The Supreme Court will allow lawyers to cite unpublished Court of Appeals decisions for their persuasive value, but only those decisions that have been released on that date or later and only authored decisions. Lawyers will not be able to cite per curiam decisions, nor will they be able to cite unpublished decisions from the last 30 years.

It only makes sense that if lawyers can cite articles in law reviews and newspapers for their persuasive value, they should also be able to cite the court’s own work. The decision to bar lawyers from looking back at decisions released prior to the July 1 effective date seems to be an effort to address concerns that were raised about the scholarship of unpublished decisions and the volume of them.

On the otherhand, I can’t help but wonder if new lawyers five or 10 years from now will scratch their heads and ask why it’s OK to cite an unpublished decision from July 1, 2009 and not one from June 30, 2009.

For those who are concerned about being punished for failing to cite unpublished decisions, the new rule creates the ability to cite without an obligation to do so.

While the Supreme Court has not gone all the way by allowing citation of unpublished decisions from the past 30 years, it has taken an important step moving forward to lift the artificial veil.

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