CITING UNPUBLISHED OPINIONS
A recent post on Howard Bashman’s excellent appellate blog, How Appealing (scroll down to February 18, the 8th entry of the day), reports on a panel discussion at Fordham University’s law school on citing unpublished opinions in U.S. Courts of Appeals. As you would expect from a law school sited in the Second Circuit, the discussion focused on that circuit, plus the First and Third. There is no mention of the Fourth in the post, nor, of course, of the Virginia appellate courts. This omission suggests the desirability of a discussion, however brief, of the protocol of citing unpublished opinions in our courts.
The Fourth has a local rule that covers this particular issue. L.R. 36(c) provides that citation to unpublished opinions is “disfavored,” which ought to be a suitable red flag to any practitioner desiring to cite one. But in the event you find an unpublished opinion that is simply too juicy to pass up, you may, in certain circumstances, do so:
“If counsel believes, nevertheless [yet another red flag, in case you missed the first one], that an unpublished disposition of this Court has precedential value in relation to a material issue in a case and that there is no published opinion that would serve as well, such disposition may be cited if counsel serves a copy thereof on all other parties in the case and on the Court.”
And there you have it. The court prefers that you not cite such cases, and you should generally heed that admonition. In the event you find an unpublished case that is on all fours with your own case, you may cite it under the terms set forth above, and it may even win the day for you. But such an opinion will not have the weight of a published opinion, and it will be utterly swamped in precedential value by an en banc determination of the court. Caveat citator.
COURT OF APPEALS OF VIRGINIA
The rule for citing unpublished opinions of the Court of Appeals is simple: You are free to do so at any time, but you are wasting paper and ink (and a portion of your page limits) in doing so. Unpublished opinions of the Court of Appeals have literally no precedential weight whatsoever, and the judges of that court uniformly disregard the opinions in making their decisions on your case. They may, perhaps, be persuaded by the reasoning of the opinions, but they will not afford the decision any other deference.
The reason for this approach lies in the internal procedures utilized by the court. A published opinion, even one decided only by a three-judge panel of the court, is generally circulated among all of the judges of the court for comment and suggestions. As a result, the opinion has at least been considered by every judge on the court, and thus every judge has at least a small say in what goes into the finished product. The court thus considers such decisions as having more precedential value than unpublished opinions, which are usually only reviewed by the three judges who are on the panel for the given case.
Accordingly, you will not get into trouble for citing unpublished opinions in the Court of Appeals, but you won’t materially advance your cause, either.
SUPREME COURT OF VIRGINIA
This one is easy – the Supreme Court doesn’t issue unpublished opinions, as the other two appellate courts do. Every decision that is handed down on opinion day will make its way into Virginia Reports, and you are obviously free to cite that. The court does, however, decide a significant number of cases by unpublished order. While the court does not have a specific rule against citing those orders, the advocate is advised to use discretion when citing them. The reason is that such orders are viewed by the court as very fact-specific, or having little precedential value. You may thus spend more time than is advisable setting forth the facts of the cited case, in order to compare it to yours. You probably won’t harm your cause by citing these decisions, but be sure to gauge the benefits against the effort you’ll expend.
CITING UNPUBLISHED APPELLATE OPINIONS IN TRIAL COURTS
The rules set forth above relate to how one cites unpublished opinions in briefs that are submitted to the appellate courts in which those cases were originally decided. (It goes without saying that one should never cite an unpublished opinion from a lower court to a higher court. Thus, citing an unpublished Court of Appeals opinion to the Supreme Court is likely to get you only an icy stare.) In lower courts, there are no specific rules for citing such opinions, except that the U.S. District Courts follow the Fourth Circuit’s rules for citing unpublished Fourth Circuit opinions. You may, therefore, cite such opinions in state trial courts in any way you wish, and in federal trial courts by using the procedure described above. But the experienced practitioner will recognize the danger in doing so; trial judges are not utter strangers to appellate judges, and will frequently recognize the limited weight given to unpublished opinions. Of course, if your opponent has read this essay, she will be ready for you. The better practice is to keep to the published opinions, which are unassailable as authority.