Even the appellate courts routinely cite unpublished authority in connection with a ruling. In Posey, the alleged error was: "the State referred to several unpublished cases during the charge conference." The court's reply was: "We are not prepared to say that a trial court errs when it bases its reasoning upon unpublished authority."
In a rarely used footnote, the Dallas court specifically explained why it only seemed to rely on unpublished opinions in deciding the trial court messed up, saying: "Both sides rely upon unpublished criminal cases. While these cases have no precedential value, we consider them for purposes of comparison, rather than viewing them as binding authority." I guess that is implied each time a court cites such cases.
With courts issuing so few published opinions these days, your choices are often to either cite a very old case (or no case) or cite a persuasive unpublished case. Personally, I'd rather cite an unpublished case out of the same court than a published case from another jurisdiction. They're both just persuasive anyway, but one is at least from the same set of judges you're trying to convince.
Posts: 1108 | Location: Waxahachie | Registered: December 09, 2004
I think we've passed the tipping point with the ubiquity of Lexis, Westlaw, and online citation services that the distinction between published and unpublished decisions is quickly becoming a thing of the past. As Andrea mentioned, opinions are simply rarely published anymore while there are substantive, useful, and deep discussions going on in COAs in unpublished decisions that are what our Courts really want to see when making their decisions.
I'm always careful to make sure I make clear to the Court that I'm citing to unpublished authority, but I also rely on it in almost every case.
So, in effect, the jurisprudence of the State is actually growing faster than ever (as the distinction disappears). Certainly no question that transparency has improved. Still seems objectionable that novel or unsettled issues are being treated as though they pertained only to the individual case, but I maintain that whenever a supposed impartial judge expresses an opinion it is worth more than an advocate's assertion and therefore useful in the future.