Labels: appellate advocacy, citation to unpublished opinions, Court of Appeals, court rule change, court rule proposal, Justice Markman, michigan court of appeals, michigan supreme court, publication standards
The Michigan Supreme Court has taken up a proposal for a court rule proposal regarding the publication standards and the citation to unpublished opinions. See ADM 2014-09. The proposal emanated from the Michigan Court of Appeals. As an appellate practitioner, I agree with some of the revisions, disagree with others, and am neutral on some, too. But what was most interesting about the proposal was the dissenting opinion of Justice Markman. His dissent spoke specifically to the portion of the proposal that stated: "Citation to such opinions in a party’s brief is disfavored unless the unpublished opinion directly relates to the case currently on appeal and published authority is insufficient to address the issue on appeal." The proposal goes on to state that an attorney who cites an unpublished decision "shall explain why existing published authority is insufficient to resolve the issue . . ." Justice Markman writes a brilliant opinion about the validity and utility of prior decisions of the Court of Appeals. I think his point is well-taken by this practitioner that a court should not be able to decide a case, and then hide behind the veil of the cases "unpublished" status to prevent future parties from citing, distinguishing, analogizing, or criticizing that court's prior opinions. I understand the Court of Appeals' concerns that some practitioners use unpublished opinions without purpose or thought, even citing to them for standard propositions of law that could be readily located in a published opinion. But I would think that an appellate practitioner would use unpublished cases more thoughtfully. For example, the appellate practitioner would explain why it was necessary to turn to an unpublished opinion. Perhaps the factual scenario was similar. Perhaps the attorney wants to show the development of the law in a certain area, or inconsistency with the Court's decisions (see Trent Collier's recent article in Michigan Lawyers Weekly where he discusses a series of 8 unpublished decisions on a particular legal issue that reach two divergent results). If there is a place for unpublished opinions in our jurisprudence, then there also is a place where they might be used for future reference. As an appellate practitioner, I don't have a problem explaining why I am using an unpublished opinion. I try to do that anyway. And other appellate practitioners might rightfully point out that the "explanation" which would now be required by the court rule proposal really is just an improper form of legislating good advocacy (well, promulgating rules at least) because good appellate practitioners will do that anyway in their endeavor to be helpful to the courts. It will be interesting to see how this debate plays out. I, for one, am looking forward to the dialogue among appellate practitioners on the topic and Justice Markman's comments in his dissent will certainly advance that dialogue.