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CAUTION RE: UNPUBLISHED OPINIONS

IN MICHIGAN CASES

 

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Unpublished court of appeals opinions lack direct precedential value, MCR 7.215(C)(1).  I have argued in the past that unpublished opinions demonstrate the conclusions the Court of Appeals consistently reaches in those cases on an everyday basis.  The Court of Appeals’ disposition of such cases is so routine that these cases do not generally merit publication.  See MCR 7.215(B) (standards for publication).  Accordingly, I sometimes offer unpublished cases as an example of how the Court of Appeals routinely treats these matters.

 

Unfortunately, the Supreme Court is not often persuaded by Court of Appeals decisions – after all, its job is to reverse the Court of Appeals.  Nonetheless, unpublished cases may be helpful to help clarify how the Court of Appeals treats these issues, or to demonstrate that the Court of Appeals does not have a consistent approach to a particular rule of law. 

 

It is generally preferable to rely on published cases over unpublished cases.  It is better to use the cases that the unpublished opinion relied upon, rather than the unpublished opinion itself.

 

 

 

 

CITATION OF UNPUBLISHED CASES IN BRIEFS

 

If an unpublished opinion is cited, however, the following form should be used pursuant to the Michigan Uniform System of Citation, ¶ I(A)(5)(r):

 

Smith v Jones, unpublished opinion per curiam of the Court of Appeals, decided January 3, 2006 (Docket No. 234567).   

 

Do not use Westlaw or Lexis citations because the court’s employees do not rely on those services.  Instead, they download unpublished opinions from the court’s website for free.

 

 

 

 

CITING UNPUBLISHED OPINIONS

IN THE FEDERAL COURT OF APPEALS

 

 

 

In the Sixth Circuit, the local rules once discouraged citation of unpublished decisions.  Changes in the federal rules have resulted in a change of heart, and the Sixth Circuit now allows the citation of unpublished opinions under Local Rule 32.1.

 

Attorneys should also consult FRAP 32.1(b), which describes when copies of unpublished opinions should be attached to their appellate briefs. 

 

As a reminder, only published decisions are binding under the rules of stare decisis. 

 

 



 

 

JAMES N. McNALLY

Attorney at Law

Specializing in Appeals

Civil – Criminal – State – Federal – Workers Comp

 

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