It is time for the court rules to catch up with the practice and technology concerning the use of unpublished appellate opinions. Rule 1:36-3 provides that with certain exceptions, “no unpublished opinion shall be cited by any court.” Yet in practice, attorneys regularly use unpublished opinions to advise clients and are free to cite them in briefs, provided the court is given a copy of the opinion and all contrary unpublished opinions known to counsel. It is only the courts themselves who are required to treat a vast trove of legal thought and helpful precedent as if it did not exist. This makes little sense.
We are led to understand that when a case is heard, the presiding judge of the Appellate Division part will already have determined whether it is to be heard by two or three judges. If there is a reasonable chance of a disagreement, a difficult matter, or the potential for a published opinion, the presiding judge will assign three judges to hear the matter. Even with a two-judge case, if during the drafting of a two-judge opinion the author determines that the issues may warrant publication, or if the judges cannot agree, counsel are requested to consent to the addition of a third judge who will review the record and join in the consideration of the case. If they do not consent, the case will be re-listed for a new argument before the three judges. Only three-judge opinions are considered for official publication and thus become precedent available to other courts for citation under the present rule.
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