Are Unpublished Cases Even Legal Anymore?

Since the Michigan Court Rules changed in 2016, local lawyers have been on pins and needles about using unpublished cases. Some even wonder if it is legal to use them anymore. So let’s cut through the fear and look at the court rule.

One year ago, on March 13, 2016, the Michigan Supreme Court change the rules about the use of unpublished cases. They made it clear that at the Michigan Court of Appeals level, unpublished decisions were disfavored when published precedent exists. What they didn’t do is take the use of unpublished cases off the table.

MCR 7.215 and Unpublished Cases

The 2016 version of Michigan Court Rule 7.215(C)(1) says:

An unpublished opinion is not precedentially binding under the rule of stare decisis. Unpublished opinions should not be cited for propositions of law for which there is published authority. If a party cites an unpublished opinion, the party shall explain the reason for citing it and how it is relevant to the issues presented. A party who cites an unpublished opinion must provide a copy of the opinion to the court and to opposing parties with the brief or other paper in which the citation.”

“If a party cites an unpublished opinion…” It’s right there. Parties are allowed to use unpublished case law. In fact, the Michigan Supreme Court staff comment says as much:

An unpublished opinion may be cited, for example, if there is no published authority on a given legal proposition or if it is necessary to demonstrate a conflict in interpretation of the law.”

Over-Use and Over-Statement

The problem going in to 2016 was that lawyers were relying on unpublished opinions for everything, even basic statements of the law. Every law school teaches that unpublished cases do not create binding precedent, but lawyers were still treating them the same as published cases.

But some lawyers have now shifted too far in the other direction. They are over-stating the court’s warning against the use of unpublished cases. They have turned it into a prohibition, rather than a preference. The truth is, unpublished cases continue to have the same weight they ever did: not binding precedent, but persuasive when there are gaps in the case law.

Using Unpublished Case Law Under the New Rule

So now that we have established that the use of unpublished cases are not illegal, how do we use them?

1: Say Why You Need It

The court rule requires a lawyer who uses an unpublished case to explain the reason for citing it. You could lay out the conflict between appeals panels, review gaps in published case law, or describe how this unpublished case is specifically relevant to the situation at hand.

2. Cite It According to the Michigan Appellate Opinion Manual

The Michigan Appellate Opinion Manual has a specific format for citing unpublished cases:

A v B, unpublished opinion per curiam of the Court of Appeals, issued [month, day, year] (Docket No. ___), p ___.

Be sure to use that format, and not a variation of the published opinion.

3. Attach a Copy of the Opinion To Your Pleading

The court rules require a party relying on an unpublished opinion to attach a copy of the full opinion to the pleadings. If lawyers continue using unpublished cases with the abandon they had in the past, pleadings will get thick pretty fast. This, more than the cautionary language of the court, will keep lawyers from relying on unpublished cases when published opinions exist to make the point.

Don’t fall into a trap of false assumptions when it comes to unpublished cases. We can still use them to strengthen our positions and argue for our clients. But we should always use them the way they were intended — to persuade — and not as precedence.

Lisa Schmidt is the writer for the Legal Linguist, in Ferndale, Michigan. She provides legal writing services to lawyers with too much on their plates. If you need help meeting your briefing deadlines, contact Legal Linguist today to schedule a meeting.

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