Unpublished Opinions and Precedent

In “Making Unpublished Opinions Precedential: A Recipe for Ethical Problems & Legal Malpractice?” (Mississippi College Law Review, Forthcoming Available at SSRN: http://ssrn.com/abstract=1001952 ), Andrew T. Solomon posits that the trend of courts to accord unpublished opinions precedential value raises serious issues when they are not as readily available or comprehensively searchable as published opinions. The article discusses recently enacted Federal Rule of Appellate Procedure 32.1, which requires that federal courts allow the citation of unpublished opinions issued after Jan. 1, 2007. FRAP 32.1 does not say whether courts must considered unpublished opinions as controlling authority. The author is particularly concerned with the Fifth Circuit’s requirement that unreported opinions older than 1996 are binding, as these older cases are difficult to find. See Fifth Circuit Local Appellate Rules 47.5.3 and 47.5.4.

Contrast the Fifth Circuit’s rule with the Ohio rule. Unreported opinions issued after May, 2002 may be cited, and the court will determine whether the unreported decision is binding or not. The Ohio Supreme Court amended its Rules for the Reporting of Opinions in May, 2002, specifically abolishing distinctions between “persuasive” and “ controlling” opinions of the courts of appeals based on status as published or not in Rule 4 , stating:

“ (B) All court of appeals opinions issued after the effective date of these rules may be cited as legal authority and weighted as deemed appropriate by the courts…”

The Committee commentary rationale for the court’s rule states in part “The “controlling” nomenclature is primarily the historical result of an inability to physically print all court of appeals opinions, and that distinction is no longer necessary or useful (a) because many appellate judges give equal weight to published and unpublished opinions, and (b) because technology now permits all appellate opinions to be easily and readily obtained electronically.

Thus, Ohio does not mandate that any unreported opinions be deemed controlling. It is up to the court to decide whether the unreported decision is controlling or not. Furthermore, the Ohio rule refers to cases decided after May, 2002, which are,for the most part, are available from the Ohio Supreme Court’s Opinions and Announcements Search.