June 2010 • Volume 98 • Number 6 • Page 286
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Can you cite to unpublished opinions?
In Illinois state court, no. In Illinois-based federal district courts, yes.
"Can you cite to unpublished opinions?" Aurora lawyer David W. Schopp recently posted this inquiry on ISBA's litigation discussion group. The question comes up periodically when lawyers find unpublished decisions that support their clients' positions, whether at the trial or appellate levels.
That even experienced lawyers may be uncertain isn't surprising, for the rules differ depending on whether a matter is in state or federal court, and on whether it's at the trial level or on appeal.
Illinois state court
Chicago lawyer Christopher Mc-Geehan had the answer for Schopp:
"No. Under Rule 23, there are three types of appellate dispositions: published opinions-Rule 23(a); unpublished orders-Rule 23(b); and summary affirmances-Rule 23(c). Rule 23(e) discusses what can be cited:
Rule 23(e) [Effect of Orders]- An unpublished order of the court is not precedential and may not be cited by any party except to support contentions of double jeopardy, res judicata, collateral estoppel or law of the case. When cited for these purposes, a copy of the order shall be furnished to all other counsel and the court.
Illinois Supreme Court Rule 23 is a general rule and governs the citation of opinions in all of the state courts in Illinois, circuit, appellate, and supreme. The federal courts, of course, are governed by their own rules. Those rules differ from district to appellate court.
Federal appellate court
Before Federal Rule of Appellate Procedure 32.1 took effect, on December 1, 2006, the U.S. Seventh Circuit Court of Appeals absolutely prohibited the citation of any unpublished order in any court within the circuit except to support a claim of res judicata, collateral estoppel, or law of the case. Local Circuit Rule 53 (repealed).
FRAP 32.1 nullified that rule and other similar rules of other circuits, providing in relevant part that
A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been:
(i) designated as "unpublished," "not for publication," "non-precedential," "not precedent," or the like; and
(ii) issued on or after January 1, 2007.
After FRAP 32.1's effective date, the court replaced Circuit Rule 53 with Circuit Rule 32.1, headed "Publication of Opinions." The rule explains, in subsection (b), the distinction between opinions and orders:
Opinions, which may be signed or per curiam, are released in printed form, are published in the Federal Reporter, and constitute the law of the circuit. Orders, which are unsigned, are released in photocopied form, are not published in the Federal Reporter, and are not treated as precedents. Every order bears the legend: "Nonprecedential disposition. To be cited only in accordance with Fed. R. App. P. 32.1."
The rule then addresses the citation of earlier-issued orders, meaning nonprecedential dispositions that are not published in the Federal Reporter, in section (d):
No order of this court issued before January 1, 2007, may be cited except to support a claim of preclusion (res judicata or collateral estoppel) or to establish the law of the case from an earlier appeal in the same proceeding.
Illinois-based federal district courts
The rule no longer governs the district courts with respect to the citation of nonprecedential orders. Rather, FRAP 1 and its local counterpart affirm that the rules of appellate procedure apply to the circuit court of appeals and that when the rules provide for filing a motion or other document in the district court, the procedure must comply with the practice of the district court. FRAP 1(a)(2). A review of the local rules of Illinois's federal district courts reveals that none have adopted local rules addressing the citation of nonprecedential orders.
Chief Judge James Holderman of the federal district court for the Northern District of Illinois agrees that the district courts do not prohibit the citation of nonprecedential orders. He and the other chief judges of Illinois's district courts, however, remember very few, if any, cases in which the citation of a nonprecedential order has aided their resolution of a matter.
Lawyers should not be surprised, Holderman says, if a judge accords little weight to a lawyer's citation of a nonprecedential order. He agrees, however, that an argument can be made that a lawyer's duty of zealous representation would require lawyers to bring unpublished, nonprecedential orders that support their clients' cases to a court's attention where the court's rules do not prohibit their citation.
Though not required to be followed, Holderman believes that nonprecedential orders may occasionally be persuasive. McGeehan adds, "In my experience, unpublished opinions are most likely to be useful when they involve very similar facts. This is particularly true in certain classes of cases, such as those brought under the Prison Litigation Reform Act, where unpublished opinions are the norm."
To read the discussion group comments on citing unpublished opinions, log in to ISBA's litigation discussion group by visiting http://www.isba.org/discussions. Navigate to the threads dated January 14 and 15, 2010, headed "Appellate Brief" and "Appellate Brief - unpublished decisions."