2.4 Researching Unpublished and Unreported Cases
7 min read•august 15, 2024
Unpublished and unreported cases can be valuable tools in legal research, offering insights into court reasoning and filling gaps where no exists. While not officially published, these opinions can still provide , especially for novel legal issues or unique fact patterns.
Researchers must navigate varying jurisdictional rules on citing these cases and use specialized search techniques to locate them in databases or court websites. Evaluating their persuasive value involves considering factors like relevance, court level, and subsequent treatment by other courts.
Unpublished Cases: Role and Significance
Defining Unpublished and Unreported Cases
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- Unpublished cases are court opinions not officially published in case law reporters and have limited precedential value but may still be persuasive
- These opinions are typically not considered binding authority and cannot be cited as controlling precedent
- However, can still provide insight into a court's reasoning and be persuasive authority, especially if directly on point to the legal issue at hand
- Unreported cases are court opinions not selected for official publication by the court and generally hold no precedential value but may provide useful examples or reasoning
- Courts have discretion over which opinions to designate for official publication in reporters
- Unreported cases are not binding but can still be located in electronic databases and cited for their persuasive value, albeit with limitations
Gap-Filling and Persuasive Uses
- Unpublished and unreported cases can help fill gaps where no binding precedent exists on an issue, especially for novel legal questions or fact patterns
- When a legal issue has not been directly addressed in a published opinion, attorneys can turn to unpublished and unreported cases for guidance and examples of how courts have analyzed similar issues
- This is particularly useful for emerging areas of law or unique fact scenarios that have not generated a body of precedential case law
- Attorneys use unpublished and unreported cases in legal briefs and arguments to courts, especially when directly relevant to the case at hand or when coming from the same jurisdiction
- While not binding, on-point unpublished and unreported cases can bolster legal arguments by demonstrating how the court or other courts have reasoned through analogous issues
- Unpublished and unreported cases from the same jurisdiction as the matter at hand tend to be most persuasive, as they provide insight into that specific court's analysis and approach
Jurisdictional Citation Rules
- The rules and practices around citing unpublished and unreported cases vary by jurisdiction with some courts prohibiting or restricting their citation, while others more freely allow it
- Federal appellate courts, for example, have specific rules regarding the citation of unpublished opinions that should be carefully reviewed
- State courts also differ in their treatment of unpublished opinions, with some prohibiting citation altogether and others allowing citation for persuasive value
- It is critical to research the specific rules of the jurisdiction and court regarding the use and citation of unpublished and unreported cases before relying on them
- Consulting local court rules, standing orders, and practice guides can clarify a particular court's standards
- Failure to adhere to restrictions on the use of unpublished and unreported cases can result in the court disregarding or even striking those references
Locating Unpublished Cases
Major Legal Databases
- Major legal databases like , Lexis, and Bloomberg Law include large collections of unpublished and unreported cases that can be searched
- These databases have extensive coverage of federal and state unpublished and unreported opinions, often going back several decades
- Opinions are fully searchable through keyword, Boolean, and natural language searches as well as through filtering and browsing options
- Effectively searching for unpublished and unreported cases requires using specific search filters, fields, or segments to narrow in on those types of opinions
- On Westlaw, for example, users can select the "Unpublished" filter under Publication Status or search for opinions with the phrases "not reported in" or "not reported at" to find unreported cases
- Lexis and Bloomberg Law have similar unpublished and unreported opinion search capabilities using filters, fields, and terms and connectors searching
Court Websites and Topical Resources
- Many courts make their unpublished and unreported opinions available on their websites, though the depth of coverage varies by court
- Federal appellate court websites, for instance, often have databases of unpublished opinions that can be searched or browsed
- State court websites increasingly are publishing unpublished opinions online, but the availability and means of access differs across states
- Topical litigation newsletters and reporters sometimes include summaries and links to significant unpublished and unreported cases in specific practice areas
- Legal news services, litigation blogs, and practice area newsletters may highlight notable unpublished cases in their reporting and analysis
- Bar association publications and interest group newsletters are another source for learning about unpublished and unreported cases by topic or jurisdiction
Citator Services
- Citators like Shepard's and KeyCite indicate when a case has been designated as unpublished or unreported
- In a case's citator report, it will be flagged if the opinion is unpublished or unreported based on the court's designation
- Citator services also allow you to find citing references to an unpublished case to determine its subsequent case history and treatment
Persuasive Value of Unpublished Cases
Evaluating Persuasive Authority
- The persuasive value of an unpublished case depends on factors like how on-point it is to the legal issue, the level and reputation of the court, the quality of its reasoning, and any subsequent case history
- The more factually and legally analogous an unpublished case is to the matter at hand, the more persuasive it will be
- Opinions from higher courts and those known for their legal analysis and reasoning tend to be more persuasive
- Unpublished opinions that have been cited positively by subsequent courts or have influenced the development of the law carry more weight
- Unpublished cases from the same court or jurisdiction as the matter at hand tend to carry the most persuasive weight
- Courts tend to be more receptive to their own unpublished opinions, as they demonstrate that court's approach to an issue
- Intrajurisdictional unpublished opinions are more likely to be consistent with a court's precedents and legal philosophy
Precedential Effect
- Pay attention to the court's rules and any substantive analysis regarding the precedential effect and weight of unpublished opinions in that jurisdiction
- Federal appellate courts have specific rules regarding the precedential effect of unpublished opinions that should be consulted
- Some state courts have ruled substantively on the value of unpublished opinions as precedent and persuasive authority
- Judges have discretion in how much weight to give unpublished cases with the goal being to analogize or distinguish the unpublished case to advocate for or against its application
- Framing is key when citing an unpublished case, focusing on the favorable parts of the opinion and distinguishing any unfavorable elements
- Opposing counsel will likely try to diminish the weight of an unpublished case, so be prepared to defend its value and applicability
Subsequent Case History
- Subsequent case history is important as an unpublished case later reviewed and reversed on appeal would undermine its persuasive value
- Always use citators to determine if an unpublished case has been negatively treated by subsequent courts
- If an unpublished case has repeatedly been cited positively by later courts, that enhances its persuasive authority
- The authoring judge of an unpublished opinion can also impact its perceived value, especially if a highly regarded jurist
- Opinions authored by judges known for their expertise in an area of law or who are oft-cited by name carry additional persuasive weight
- Conversely, if an opinion is from a judge whose rulings are frequently reversed or criticized, that can detract from its value
Citing Unpublished Cases
Bluebook and Citation Guides
- The Bluebook and other citation manuals provide specific citation formats for unpublished and unreported cases
- Bluebook Rule 10.8.1 covers the citation of unpublished federal court opinions, providing examples across courts
- Table BT2 outlines the citation formats for unpublished and unreported state court opinions, which vary by jurisdiction
- The key components are the case name, docket number, court, date, and electronic database identifier with specific reporter information generally omitted
- Example Bluebook format: Dunson v. Friedlander Realty, No. 85-1503, 1987 WL 14517 (5th Cir. Jan. 14, 1987)
- This format includes the case name, docket number, electronic database identifier (Westlaw), court, and full date
Local Court Citation Rules
- Many courts have local for unpublished cases that take precedence over general citation guides, so always check and follow the local rules
- Federal appellate courts, for example, have specific rules for citing their unpublished opinions that attorneys must adhere to
- State courts also vary in their unpublished opinion citation requirements, with some having detailed rules and others defaulting to general citation guides
- When citing an unpublished case, explicitly indicate that it is unpublished or unreported in a parenthetical or explanatory phrase
- Failing to do so can be seen as misrepresenting the opinion's precedential weight
- Example: Smith v. Jones, No. 123456, slip op. at 5 (N.Y. Sup. Ct. Jan. 1, 2022) (unpublished opinion)
Acknowledging Limitations
- If referencing an unpublished or unreported case in a jurisdiction that restricts their use, acknowledge any limitations or special permission required for the citation
- Some courts only allow citation of unpublished opinions in limited circumstances or with special notations
- Consult the court's local rules and standing orders for any required language or limitations that must be included with the citation
- Be prepared to explain the value of the unpublished case if challenged and why the court should consider it
- Opposing counsel may object to the use of the unpublished opinion or ask the court to disregard it
- Proactively address the opinion's persuasive value and why the court's citation rules allow for its use in your situation
Key Terms to Review (16)
Binding Precedent: Binding precedent refers to a legal principle or rule established in a previous court case that must be followed by lower courts in future cases with similar facts. This concept is rooted in the doctrine of stare decisis, which ensures consistency and predictability in the law. Binding precedents are crucial in maintaining a uniform legal system, where courts are obligated to adhere to established rulings, ensuring that similar cases receive similar treatment.
California Rule of Court 8.1115: California Rule of Court 8.1115 is a rule that governs the citation and use of unpublished opinions in California courts. This rule outlines how unpublished opinions can be referenced in legal arguments and sets restrictions on their authority as precedents, emphasizing that they cannot be cited as legal authority in most circumstances unless specifically allowed by law.
Case Citation: Case citation is a standardized reference format that allows legal professionals and researchers to identify and locate judicial opinions in legal documents and databases. It provides essential information such as the names of the parties involved, the volume number of the reporter, the page number where the case begins, and the year it was decided. This standardization is crucial for effectively Shepardizing cases and for researching unpublished or unreported cases, ensuring accurate references and updates.
Case Law Searching: Case law searching refers to the process of locating and analyzing judicial opinions that have been published by courts. This practice is essential for understanding how courts interpret laws and apply legal principles, as it allows researchers to find precedents that can influence current and future cases. Effective case law searching also involves differentiating between published and unpublished cases, especially when unpublished cases may still hold persuasive authority in certain jurisdictions.
Citation Rules: Citation rules are a set of guidelines that dictate how legal documents and cases should be referenced in legal writing. These rules ensure consistency and clarity when citing sources, which is crucial for legal research, particularly when dealing with unpublished and unreported cases that may not follow traditional citation formats. Understanding citation rules helps legal professionals communicate effectively and uphold the integrity of legal scholarship.
Confidentiality Concerns: Confidentiality concerns refer to the ethical and legal issues surrounding the protection of sensitive information that is not publicly disclosed. These concerns are particularly relevant when researching unpublished and unreported cases, as such materials often involve private details about individuals or entities, and unauthorized disclosure can lead to significant legal repercussions or breaches of trust.
Disclosure Requirements: Disclosure requirements refer to the legal obligations that parties must fulfill by providing necessary information and documentation to involved stakeholders, typically within a litigation context. These requirements ensure transparency, enabling all parties to have access to relevant facts and evidence, which is crucial for fair trial processes. The nature and scope of these requirements can vary significantly depending on jurisdiction and the type of case being addressed.
Doctrine of stare decisis: The doctrine of stare decisis is a legal principle that mandates courts to follow the precedents established in previous judicial decisions when making rulings on similar cases. This ensures consistency and predictability in the law, as well as promotes judicial efficiency by allowing courts to rely on established interpretations rather than re-evaluating every legal issue anew. Understanding this doctrine is crucial when dealing with both published and unpublished cases, as it underscores how courts may refer to prior decisions—even if they are not officially reported.
Federal Rules of Appellate Procedure: The Federal Rules of Appellate Procedure are a set of rules that govern the process of appeals in federal courts in the United States. These rules provide essential guidelines for how parties can challenge decisions made by lower courts, outlining procedures for filing notices of appeal, preparing briefs, and presenting oral arguments. Understanding these rules is crucial for navigating both published and unpublished case law effectively and conducting thorough research on appellate practices.
Judicial Notice: Judicial notice is a legal doctrine that allows a court to recognize and accept certain facts as true without requiring formal evidence. This means that if a fact is generally known or can be accurately and readily determined, the court can acknowledge it without extensive proof. This process simplifies litigation by streamlining the introduction of commonly accepted facts, especially important in cases involving unpublished and unreported cases where the legal landscape may not be as well-documented.
Metadata analysis: Metadata analysis refers to the process of examining and interpreting data that describes other data, often providing context or information about the content, quality, and characteristics of the original data. In the realm of unpublished and unreported cases, metadata analysis can reveal important details regarding the creation, modifications, and authorship of legal documents, enhancing the researcher’s ability to evaluate and locate relevant case law.
Non-precedential decisions: Non-precedential decisions are judicial rulings that are not intended to serve as a binding precedent for future cases. These decisions often arise in appellate courts and are typically issued in cases where the court finds that the issues are not sufficiently significant to merit a detailed opinion. As a result, these decisions may not be published or included in official reports, making them less accessible for legal research and citation.
PACER: PACER, which stands for Public Access to Court Electronic Records, is an online service that provides access to federal court documents and case information. This system allows users to search for and view various legal documents, including dockets, opinions, and filings from federal courts across the United States. It serves as a crucial tool for legal professionals, researchers, and the general public to access unpublished and unreported cases that may not be readily available through other channels.
Persuasive Authority: Persuasive authority refers to legal sources that a court is not obligated to follow but may consider when making a decision. This type of authority includes cases, statutes, regulations, or legal writings from jurisdictions that are not binding but can influence a court's reasoning and conclusions. It is crucial for legal professionals to understand how and when to use persuasive authority to support their arguments effectively.
Unpublished opinions: Unpublished opinions are judicial decisions that are not officially published in the reporter series and are typically considered less authoritative than published opinions. These opinions may be used as persuasive authority but are often restricted in their citation in legal proceedings, depending on jurisdictional rules. The unavailability of these opinions can pose challenges for legal researchers who need to understand the full scope of a court's reasoning and decisions.
Westlaw: Westlaw is a comprehensive online legal research service that provides access to a vast database of legal resources, including case law, statutes, regulations, and secondary sources. It serves as an essential tool for legal professionals, offering features that enhance the research process through advanced search capabilities and detailed analysis.