Appellate court begins to put 'unpublished' rulings on Web
Tuesday, September 20, 2005
BY ROBERT SCHWANEBERG
Star-Ledger Staff

Each year New Jersey appeals courts issue about 3,800 decisions, but only a tenth of them are published in the law books and on the judiciary's Web site.

By law, the rest are still public documents. In practice, it is next to impossible for anyone other than the lawyers handling those cases and reporters at the Statehouse to find them. For the rest of the public, they might as well be secret.

That is about to change. Today the judiciary is scheduled to begin posting its "unpublished" decisions on its official Web site, making them available worldwide via the Internet.

"This is all part of a program of providing case information faster," said Edwin Stern, presiding judge for administration of the Appellate Division. "By using the Internet, we can provide these opinions quickly, conveniently, efficiently and free of charge."

Appellate Division Judge Philip Carchman, acting administrative director of the courts, called the change "a significant step forward in providing access to the work of the courts."

State Bar Association president Stuart Hoberman said, "It's certainly an advancement that's welcomed by the association."

The "unpublished" rulings will still have a decidedly second-class status. Published appeals court rulings are the law of the state and every trial judge must follow them.

Unpublished rulings decide a particular case but set no legal precedent. Judges are free to ignore them.

That two-tiered system developed decades ago when state appeals courts decided that if they were not selective about what they published, library bookshelves and the law itself would collapse under the accumulated weight.

But unpublished opinions are often newsworthy in their own right. Lawyers also can use them to try to sway a judge, provided they play fair. They cannot pick the unpublished rulings that help their case and ignore others that hurt it.

Stern said some big or specialized firms with the time and money stockpile unpublished rulings affecting their particular area of the law.

"This way, everybody has equal access and they can keep whatever they choose to keep," Stern said.

Jeffrey Newman, acting clerk of the Appellate Division, said posting the unpublished decisions online required training for staff and some changes in procedures but was accomplished without significant cost.

Like the published decisions, the "unpublished" rulings will remain on the judiciary's Web site for two weeks before being sent to an archive maintained by Rutgers School of Law in Camden.

Viewing the judiciary Web site at njcourtsonline.com and clicking "Supreme/Appellate Opinions" will take users to a link to the unpublished decisions.

Ronald Chen, an associate dean at Rutgers School of Law in Newark, said, "The more access to judicial reasoning, whether they call it published or unpublished, the better."

Robert Schwaneberg covers legal issues. He may be reached at rschwaneberg@starledger.com or (609) 989-0324.


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