When the Wisconsin Supreme Court next year reviews its 2009 rule that allows for citation of unpublished appellate court decisions, there may be minimal evidence to determine the value of the change.
That is, in part, because appellate attorneys and judges say the option is rarely used due to limitations on eligible cases, cost to clients and need.
When the court adopted the rule, it only allowed unpublished citations from July 1, 2009, the effective date of the rule, and beyond. The court included a three-year review of the rule, which will take place in 2012.
The rule allows attorneys to cite unpublished appellate court decisions for persuasive, but not precedential authority, something that was prohibited prior to the change.
But the limitations on available cases permitted for citation has, to this point, resulted in minimal benefits to appellate court lawyers, said Milwaukee attorney Amelia Bizzaro of Bizzaro Law LLC.
“I would have preferred to see it more broadly adopted,” she said, “rather than just drawing a line in the sand that only everything after 2009 is OK.”
The original petition submitted to the Supreme Court by the Wisconsin Judicial Commission had no restrictions on citing unpublished opinions retroactively.
The lack of clarity on a timeline was intentional and left the justices to decide what unpublished decisions could be available for citation, said Gass Weber Mullins LLC
lawyer Beth Hanan, who presented the petition to the court.
The Supreme Court opted for a hard start date to alleviate concerns that retroactive citations would allow attorneys to cite poorly written unpublished opinions because judges never expected them to be used in court.
“That part is true,” Kitty Brennan, District 1 Court of Appeals judge, said. “It’s not appropriate to go back and cite earlier cases for that very reason.”
According to Chris Paulsen, chief deputy clerk of courts for the Supreme Court and Court of Appeals, his office hasn’t been tracking the use of unpublished citations because of the administrative burden it would cause.
Bizzaro said she has yet to cite an unpublished opinion in an appellate brief, largely because of the limited library.
“I think the fact that it has only been a couple of years,” she said, “attorneys don’t see the citations as that persuasive.”
But Brennan said a lack of need, rather than a lack of volume, is the reason unpublished citations are infrequent.
She said she has yet to come across an unpublished citation in the hundreds of opinions she’s issued since 2009, or heard of any in District 1.
“I think appellate court judges are doing a good job of picking which decisions to publish,” Brennan said. “So attorneys are not having to reach behind to those unpublished decisions.”
Milwaukee attorney Diane Slomowitz, of Fox, O’Neill & Shannon SC, acknowledged she will always look to published opinions first because they are precedential. But she said when writing trial court briefs, the rule has been useful in extending the overall pool of cases available to help formulate a legal argument.
“I find it helpful, if for no other reason it helps me formulate my analysis,” Slomowitz said. “It also gives you an idea of what courts are looking for and how they are approaching cases.”
Slomowitz said she has cited unpublished opinions in “more than a handful” of cases since the rule change.
Madison appellate attorney Mike Van Sicklen, of Foley & Lardner LLP, said putting in the time to research unpublished opinions is an unnecessary expense for clients.
He said he shies away from unpublished citations because it adds to the number of cases to research, which costs clients more money.
“It’s deserves several practical goals,” Van Sicklen said. “It increases the cost to clients when doing briefing and motion practice and the like.”
Scope of limitation
Hanan acknowledged that the limited scope of available cases hasn’t yet led to widespread benefit for lawyers.
In the 12 appeals she filed since the effective date of the rule, Hanan said she has cited only one unpublished opinion.
But she defended the restrictive decision of the court, saying it didn’t ambush judges, but still provided more transparency for lawyers to use unpublished decisions to build their cases.
“On those occasions where attorneys need to look at some reasoning by the court,” Hanan said, “at least they can candidly attribute the analysis to an unpublished opinion.”
She said she doesn’t expect any proposed revisions to the current rule when it comes before the court, other than another review in three years.
While she favors the basis for the rule, Bizzaro said time will tell as to how useful it will be for attorneys, absent a broader approach.
She said she was reluctant to cite unpublished opinions when the rule first took effect for fear of accidentally picking one before July 1, 2009.
“I feel like they should just open it up,” Bizzaro said, “if they change it at all.”