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FAMILY LAW: In support of the state Supreme Court’s unpublished citation rule

Gregg Herman

A recent Wisconsin Law Journal article questioned the necessity of the Wisconsin Supreme Court rule allowing citation of certain unpublished cases.

The article quoted various lawyers who said the rule is rarely invoked, leaving the impression it is not worthwhile. The article states unpublished cases are rarely cited due to “limitations on eligible cases, cost to clients and need.”

In adopting the rule, the Supreme Court made two substantial limitations on the use of citing unpublished cases. First, it only applies to signed opinions, not per curium ones. Second, it only applies to decisions filed after July 1, 2009.

So, no surprise that, so far, the rule has been rarely used.

As a result, the questions we should be asking are: first, has this rule caused any problems? And second, has it substantially changed the practice of law?

The answer to both questions is “no.”

At several conferences, including a judicial one, I’ve asked lawyers and judges how many unpublished, but citable, cases they have either cited or seen cited. In all instances, the answers were few, if any.

Personally, I have not seen a single appellate case where either the Court of Appeals or the Supreme Court has availed itself of this rule.

Clearly the rule has not revolutionized the practice of law. But, then again, it was never contemplated that numerous citations to unpublished cases would be forthcoming. After all, if these cases were all that important, they would be (or should be) published.

Rather, the rule is intended for the few unpublished cases that would, on occasion, provide some guidance to lawyers and trial courts.

While the new rule has not substantially changed the practice of law, there have been no reports of the rule creating any problems. The fears of lawyers or courts getting blindsided or inundated by obscure unpublished cases has simply not materialized.

Similarly, it has not greatly increased the workload of lawyers or courts. In 2011, there were nine unpublished family law cases which are citeable under this rule. That is approximately one case every six weeks. It is hardly a great burden for lawyers and judges to read that many cases.

So why is the rule a good idea? It prevents an absurdity in the law with no adverse consequences.

The absurdity is best illustrated by trying to explain to a client that the appellate court has ruled on a similar issue in a different case, but you cannot remind the court of its decision. It’s a secret.

It’s even more absurd when you realize that you can cite a circuit court opinion, but not an appellate court opinion.

The rule, once it has been in effect for a sufficient time, will likely result in a more efficient legal system. If lawyers and trial courts know how an issue is likely to be decided by the Court of Appeals, it will lead to settlement as no lawyer wants to engage in a kamikaze mission.

It is premature to give examples of this efficiency in action since the limitations on use of this rule will result in some time needed for its use.

In the short term, however, the rule is doing no harm. In my opinion, future benefits with no adverse consequences are not bad results.

Gregg Herman is a shareholder with Loeb & Herman S.C. in Milwaukee, which practices exclusively family law. Herman can be reached via email at gherman@loebherman.com.

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