BY STEPHANIE FRANCIS WARD

Friday, April 23, 2004

GIVING THEIR OPINIONS
Committee Backs Rule Allowing Lawyers to Cite Unpublished Decisions

The 9th U.S. Circuit Court of Appeals does not allow citation of unpublished opinions, and it certainly appears that many California lawyers and judges want to keep it that way.

The U.S. Judicial Conference is considering a uniform rule requiring all federal circuits to allow the citation of unpublished opinions. But in the past year, the conference has received more than 500 letters in opposition, most coming from the Golden State.

Citation of unpublished opinions is a matter of circuit discretion, and the San Francisco-based 9th U.S. Circuit Court of Appeals is one of four federal circuits that do not allow the practice. Opposition to the proposal seems to be led by 9th Circuit Judge Alex Kozinski, a Pasadena-based jurist.

So far, the effort has been unsuccessful. On April 13, the Judicial Conference’s Advisory Committee on Appellate Rules gave its approval to the proposal, which is identified as Rule 32.1 of the Federal Rules of Appellate Procedure.

"I think this committee was courageous in seeing through the smoke and sticking to its guns," says Stephen Barnett, who supports the rule change. He is a professor at University of California-Berkeley Boalt Hall School of Law. Other groups supporting the proposal are the American College of Trial Attorneys and the ABA Litigation Section.

In testimony to the committee, Barnett noted few comments came from circuits that allow citation of unpublished opinions.

"If making opinions citable had even a slight fraction of the adverse effects predicted in comments from the four no-citation circuits, one would expect federal circuit judges in the other nine circuits to say so," Barnett testified. "Nothing of the sort has been heard."

Kozinski did not testify before the appellate rules committee, but he did submit a 22-page letter. In it, he stressed that the proposed rule would have "perverse effects" if approved.

Clerks and staff lawyers with the 9th Circuit, Kozinski wrote, often draft unpublished opinions. The writings are presented to an appellate panel in chambers, and the panel usually takes between 5 and 10 minutes to sign off on each one.

Alternatively, published opinions involve significant drafting, editing and revising, and often take months to craft, according to Kozinski. Other circuit judges scrutinize the writings and often suggest modifications.

"Given the press of our cases, especially screening cases, we simply do not have the time to shape and edit unpublished dispositions to make them safe as precedent," he wrote. "In other words, we can make sure that a disposition reaches the correct result and adequately explains to the parties why they won or lost, but we don’t have the time to consider how the language of the disposition might be construed (or misconstrued) when applied to future cases."

And if unpublished opinions are citable, asks Robin Meadow, a Beverly Hills appellate lawyer and president of the Los Angeles County Bar Association, what priority should they receive in legal research?

"One thing we don’t know is what happens to the lawyer who misses nonpublished cases. Some disappointed client might sue for malpractice," he says. "It’s not that people don’t look at unpublished opinions now; they do. The difference is the priority you have to give them."

A uniform citation rule was first suggested in 2001 by former Solicitor General Seth Waxman. After the Advisory Committee on Appellate Rules’ final approval, the proposal next goes to Standing Committee on Rules of Practice and Procedure. That group is slated to make its decision in June.

"I’ve been told members of the standing committee have been getting lobbied through phone calls and letters," says Patrick J. Schlitz, reporter for the Advisory Committee on Appellate Rules. A professor at the University of St. Thomas School of Law in Minneapolis, he adds that the standing committee is not taking public comments at this stage.

If the standing committee gives approval, the U.S. Judicial Conference will consider the proposed rule. If endorsed by the conference, the proposal goes to the U.S. Supreme Court, and then to Congress. If the proposal is successful, it is expected to be implemented in January 2005.

The issue of unpublished opinions is somewhat new. Until the 1970s, Barnett says, all circuit opinions were published.

"Which meant publication in paper, with books on shelves," he says. But the court was running out of shelf space and money, so the Federal Judicial Conference adopted a rule stating that opinions were not publishable unless they created new law.

"Once you limited publication, what followed was [elimination of] citation, because if the opinions weren’t published, they really weren’t available," Barnett explains. "All that changed with the Internet, which makes it possible to have all opinions available for free. The pressure grew to allow them to be cited."