Attorneys to high court: 'Disfavoring' unpublished opinions a bad idea

Judges say attorneys are increasingly relying on unpublished cases for basic legal principles

By Traci R. Gentilozzi
The Daily Record Newswire
DETROIT — Amending the Michigan Court Rules to “disfavor” citing unpublished opinions in appellate briefs will have many unintended — and negative — consequences, lawyers from across the state told the Michigan Supreme Court at a recent public hearing.

The proposal to amend MCR 7.215(C) would, among other things, discourage the citation of unpublished cases in appellate briefs. If an unpublished opinion is cited, an explanation about why published authority is unavailable must be provided.

The Michigan Court of Appeals proposed the rule change because the judges say they have seen attorneys increasingly relying on unpublished cases for basic legal principles, even when published cases are available.

The rule amendment was published for comment earlier this year. The Supreme Court received numerous written responses from the bench and bar, most disfavoring the change.

At the Supreme Court’s Sept. 16 public hearing on the proposed amendment, two speakers indicated their support for the proposal: Court of Appeals Judges Elizabeth L. Gleicher and Christopher M. Murray.

“There is no aspect [of this amendment] that ties a practitioner’s hands behind his back,” said Gleicher, who chairs the Court of Appeals Rules Committee. “It does not prevent practitioners from citing unpublished authority and, when they do, explaining why it’s being cited.”

The “outcry” from lawyers has been “tremendous,” Murray said. “I think there’s a disconnect between what we see on a daily basis [at the Court of Appeals] and what they believe.”
The remaining speakers told the Supreme Court they oppose the amendment, for various reasons.

The proposal “goes too far,” said Grand Rapids appellate attorney Gaëtan Gerville-Réache, of Warner Norcross & Judd LLP. “Good advocacy is that if there is published authority on point, you cite it. This rule says you now have to explain why the unpublished authority is relevant. The national trend is toward allowing citation [to unpublished cases]. This rule goes in the opposite direction.”

According to Gerville-Réache, “We disagree that this problem deserves a court rule, that this rule will solve a problem and that this rule only goes as far as they say it does.”
During the hearing, Justice Stephen J. Markman, who disagreed with publishing the proposal in the first place, pointed out that many opinions are unpublished because the propositions of law are well-settled.

“Yet, we’re [now] being told to take extra care in citing these unpublished opinions when the area of the law is well-settled,” he pointed out.

The issue, according to Markman, is not whether lawyers are being conscientious in their advocacy or whether there is enough published authority to cite. “It’s whether unpublished opinions are quasi-law or real law,” he said.

Provide an explanation

“The amendment merely summarizes what effective advocates already know: citation to unpublished authority without explanation to why is ineffective,” Gleicher told the high court.

“It does not advance a client’s cause and does not help the court decide a case or craft an opinion,” she said. “It sends a message that the advocate has not done his or her homework and has not located published authority that would help the court.”

Under the proposal, lawyers would have to inform the court “in a phrase, sentence or short footnote” why the unpublished opinion is being offered, Gleicher said.

Amending MCR 7.215(C) would put Michigan in the mainstream with other courts across the country, Gleicher said. “Some states forbid any citation to unpublished authority, no exceptions. Others allow for a safety valve like ours, and we think that’s the preferable rule.”

Gleicher emphasized the rule was offered as a way to help lawyers be more effective advocates. “And it is published authority that helps us write the most effective opinions.”
Murray said unpublished authority is cited “all the time,” even when published cases are available. “The rule says they don’t have any precedential effect. People are ignoring that. So if you want to use it, just tell us why.”

Chief Justice Robert P. Young Jr. asked about the “shrinking range” of published opinions.

“The impact [of the rule amendment] will be more published opinions, although I don’t necessarily think we need to publish more,” Murray stated.

While agreeing there seems to be a “disconnect” between the bench and bar on the issue, Markman noted unpublished opinions are often “very good” decisions. “To characterize unpublished opinions as not supplying any contextual opinion over-generalizes what an unpublished opinion is all about,” he said.

“The word ‘disconnect’ does not mean in the ability to properly advocate,” Murray emphasized. “The great bulk of lawyers do it the proper way. But more and more, we get these unpublished opinions that shouldn’t be used for basic principles.”

Markman asked what extra burden unpublished cases place on the Court of Appeals.

Unpublished opinions, Murray said, have become lengthier in recent years. “It is added work for us to go through 10 or 15 unpublished opinions.”

‘Disfavored’ is ‘destructive’

Novi attorney Christopher J. Harrington, speaking for the State Bar Family Law Section, said the word “disfavor” in the proposed rule creates a negative implication and is “destructive to the use of” unpublished authority.

“Do we need a court rule that may have an unintended consequence of creating a stigma about unpublished opinions?” asked Harrington, of the Law Offices of James J. Harrington III PLC. “A court rule that says ‘disfavored’ does an injustice to our ability to represent our clients.”

Lansing appellate lawyer Liisa R. Speaker, speaking for the Michigan Coalition of Family Law Appellate Attorneys, noted the State Bar Appellate Practice Section, has had ongoing discussions with the Court of Appeals Rules Committee about the suggested rule change.

“The proposal does not address the concerns presented in our meetings with them,” Speaker told the justices. “The rule they’ve proposed goes beyond that and is overly burdensome.”

She noted the MCFLAA and the Appellate Practice Section have both presented alternative amendments that do not use the word “disfavored.”

“Using the word ‘disfavored’ puts a chilling effect on attorneys trying to advocate for their clients,” Speaker said. “You have to explain why published cases are inadequate before you even get to the unpublished opinion.”

According to Speaker, putting an “admonition” in the rule will not make lawyers better advocates. She explained that effective appellate lawyers already offer explanations when citing unpublished cases.

The attorneys who do not offer such explanations “are not reading the court rules and are not advocating for their clients anyway,” she said.

‘Bleed down’ to trial courts

Speaking for the State Bar Negligence Law Section, Detroit lawyer Timothy A. Diemer said there is frequently a lack of published authority to cite in appellate briefs.
“The burden, then … as a good advocate … is to bring that to the court’s attention,” Young stated.

The proposal will also have a “chilling effect” on the trial courts, said Diemer, of Jacobs and Diemer PC. “A trial judge is more likely to say if the Court of Appeals disfavors unpublished opinions, then I’m not going to [rely on them] either. … I think more judges will do this, if this rule is passed.”

Harrington agreed. “It is a bleed-down to the trial court level. Trial judges sometimes won’t even listen to you.”

According to Randy E. Davidson of the State Appellate Defender Office, the proposed amendment will have a negative impact on criminal defendants in particular.

Davidson said he examined recent appellate opinions involving SADO and that, as of May 2015, there were 13 unpublished cases during the past two years where SADO obtained relief for a client. Many of these cases were, he said, “thorough” in their analysis and lengthy.

Published authority is frequently unavailable for criminal cases, he noted.

“The [proposed] rule doesn’t preclude me from giving unpublished authority,” Davidson acknowledged. “But in almost every single brief I file, I will now have to give the explanation for unpublished cases.”

Young remarked, “The failure to do that is poor advocacy. You never want the court to have to connect the dots in your argument. So how does this rule confound someone who wants to advocate?”

The rule “sends a signal” to the decision-makers that unpublished cases are less worthy of consideration, Davidson asserted. “The rule doesn’t say that, but that’s the practical effect.”



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