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CAUTION RE: UNPUBLISHED OPINIONS IN
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Unpublished court of appeals opinions lack direct precedential value, MCR 7.215(C)(1). I have argued in the past that unpublished opinions demonstrate the conclusions the Court of Appeals consistently reaches in those cases on an everyday basis.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 Accordingly, I sometimes offer unpublished cases as an example of how the Court of Appeals routinely treats these matters.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 Nonetheless, unpublished cases may be helpful to help clarify how the Court of Appeals treats these issues, or to demonstrate that the Court of Appeals does not have a consistent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It is generally preferable to rely on published cases over unpublished cases. It is better to use the cases that the unpublished opinion relied upon, rather than the unpublished opinion itself.
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CITATION OF UNPUBLISHED CASES IN BRIEFS
If an unpublished opinion is cited, however, the following form should be used pursuant to the Michigan Uniform System of Citation, ¶ I(A)(5)(r):
Smith v Jones, unpublished opinion per curiam of the Court of Appeals, decided January 3, 2006 (Docket No. 234567).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 Instead, they download unpublished opinions from the court’s website for free.
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CITING UNPUBLISHED OPINIONS IN THE FEDERAL COURT OF APPEALS |
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In the Sixth Circuit, current court rules discourage citation of
unpublished opinions (local rule 28[g]) – “Citation of unpublished decisions
in briefs and oral arguments . . . is disfavored, except for the purpose of
establishing res judicata, estoppel, or the law of the case”). That rule is changing, though.
New amendments to the Federal Rules of Appellate Procedure provide
that a court “may not prohibit or restrict” citation of unpublished
opinions. That amendment to FRAP rule 32.1
takes effect December 1, 2006. To conform to that new amended rule, the Sixth Circuit has published a
proposal to amend its current local rule to provide that “Citation of
unpublished opinions is permitted.” That
proposed amendment should pass without difficulty. Attorneys should consult the amended FRAP 32.1, which describes when
copies of unpublished opinions should be attached to their appellate
briefs. |
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JAMES N. McNALLY Attorney at Law Specializing in Appeals Civil – Criminal – State – Federal – Workers Comp
(313) 378-6060
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