About Unpublished Opinions

A large share of all appellate law opinions, especially those involving well settled legal principals, are not published. There is a weak argument that this is fine because it reduces the crush of cases that practitioners have to review, and a slightly stronger argument that it allows judges concerned about their reputation for good writing to concentrate on important cases, while giving them latitude to be sloppy in how they write opinions in less important cases.

But, there is an argument against this practice, in addition to the main argument of practitioners that every case is useful because it provides recent affirmation of settled law and because it provides fact situations that could recur with on point authority. This is that unpublished opinions help the public better evaluate a trial judge's performance in retention elections. Published opinions are very rarely useful in this regard, because they involve trial judges who are either right or wrong on close issues of law, which are often at the cutting edge in cases where precedent provides less clear guidance than one might hope. This is why they are published. And, even the best judges can get those issues wrong in 20-20 hindsight.

But, unpublished opinions apparently involve trial judges who are screwing up on well settled law that the appellate courts feel is so clear that the public learns nothing from a new opinion about it. This may be true, but the public does learn a great deal about the trial judge anytime the judge is reversed in an unpublished opinion, as a good share of unpublished opinions are reversals, on the basis of law that should have been abundantly clear, particularly if this happens repeatedly. Likewise, the public learns a fair amount about the attorneys bringing the case, and about the kinds of legal claims that may be clogging the appellate courts inappropriately, from reviewing cases that are appealed and result in affirmances. Of course, in criminal cases where convictions are affirmed (frequently on the grounds of harmless error rather than lack of error), the claims advanced on appeal may have more to do with the fact that the defendant gets free appellate counsel and has nothing to lose by trying in many cases, rather than reflecting poorly on the appellants' counsel. But, dubious appeals from government parties and in civil cases, are worthy of public comment.

This doesn't mean that cases which are now unpublished need to be elaborate. In many cases, simply stating the issues presented on appeal and ruling that the decision is affirmed for the reasons stated by the trial court judge who ruled on those issues at trial would be sufficient, leaving the public to root out that opinion from trial court records or the party's briefs on file with the court, if they wish. I also wouldn't be adverse to openly permitting appellate judges to simply copying with attribution, chunks of one party or another's appellate briefs. In an age of e-filing and cut and paste technology, this is no great effort for the judge and provides guidance to the public. I also wouldn't be adverse to allowing appellate judges to use standard forms to explain a ruling on issues presented upon which the appellant loses that commonly come up, such as a check the box space that states "issue not preserved for appeal at trial and plain error exception does not apply".

It was not uncommon before unpublished opinions became the norm for an appellate ruling to simply state the facts and issues presented in a paragraph or two, and then to simply state in regard to the issue raised "affirmed based on [case cite]" and "reversed and remanded in accordance with [case cite] on [issue description].", indeed such summary orders are still not uncommon in the U.S. Supreme Court.

The experience of Colorado in a brief era when many unpublished opinions never the less ended up being published by reporting services also shows that the opinions actually issued are often far better than the ones I suggested above.

Not every opinion has to be user friendly, but the courts should not operate behind a veil of secrecy.