New Case Could Change the Way You Write Briefs

Warning Against Unpublished CasesWe all remember our law school days, spending hours reading unpublished cases in the law library trying to find that one case that mirrored our professor’s fact pattern. He (or she) had to get it from somewhere, right? Many of us still use that practice today, relying on unpublished opinions when they are closer to our facts that the published case law. But a recent, ironically unpublished, case from the Michigan Court of Appeals could change all that.

The case is Duck Lake Riparian Owners Association v. Fruitland Township. In the midst of a discussion of everyone’s favorite topic, Res Judicata and Collateral Estoppel (note the sarcasm), the court dropped this bomb:

Plaintiff relies extensively on an unpublished case from this Court. Unpublished cases are not binding. MCR 7.215(C)(1). Furthermore, this Court disfavors reliance on unpublished opinions even as persuasive precedent and strongly discourages the bench and bar from relying on them in any way. Id. at *4

In any way? With one swift stroke of the pen, this Court of Appeals panel has eliminated a huge part of the litigator’s arsenal. It undercuts the careful work of its fellow judges who write carefully crafted unpublished opinions in order to be persuasive on the trial courts below. And it leaves some lawyers in the lurch where there is little published case law with which to prove their arguments.

The real logistical irony of this statement is that it is made in the middle of an unpublished opinion. Thus if attorneys were to take the court’s advice and not rely on unpublished opinions in any way, they would have to simultaneously not rely on that very advice. The logical paradox is dizzying.

But there is a nugget of truth to be taken from the court’s paradoxical opinion. We need to remember that we are not in law school anymore and that our clients’ cases do not come out of an obscure unpublished legal decision. Whenever possible, attorneys should rely on published opinions and statutes. Unpublished opinions should be the icing on the cake, not the main course.

If you need help with legal writing or overflow drafting, contact ghostwriter Lisa Schmidt for assistance.

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