Upon Further Review

Believe it or not, the very first installment of my monthly appellate column here in The Legal Intelligencer appeared in December 2000—more than 18 years ago—and therein I argued that appellate advocates should be allowed to cite to the unpublished and nonprecedential opinions of the appellate courts in which they are practicing.

Howard Bashman.

This cause, to put it mildly, proved to be something of an uphill battle. Yet over the years that followed, more and more federal and state appellate courts began to post online not only their published opinions, but also their unpublished opinions. In December 2006, the federal appellate courts adopted new Federal Rule of Appellate Procedure 32.1, which allowed advocates to cite to unpublished opinions issued on or after Jan. 1, 2007, for their persuasive value.

That rule change had U.S. Court of Appeals for the Third Circuit connections, as it was guided to approval by then-Third Circuit Judge Samuel A. Alito Jr. Moreover, the rule change was achieved notwithstanding considerable opposition from certain judges and lawyers who decided cases in and practiced before the U.S. Court of Appeals for the Ninth Circuit. These judges and lawyers were fervently opposed to the rule change for various reasons.

For the past 12-plus years, the federal appellate courts have demonstrated that allowing lawyers and litigants to cite to unpublished, nonprecedential rulings would not result in the destruction of our appellate system as we know it. Now more than ever, computerized legal research tools allow advocates to discover the veritable needle in the haystack more easily than ever, whether in the form of a published or unpublished ruling.

After Fed. R. App. P. 32.1 took effect in early 2007, federal appellate courts have time and again taken advantage of the principle that unpublished opinions are not binding as precedent and only useful to the extent they are persuasive. Thus, countless federal appellate court decisions now exist in which those courts, in published opinions having precedential value, have refused to follow the results reached in those same courts' unpublished opinions that the later judges, deciding subsequent cases, found unpersuasive.

Despite the enactment of Rule 32.1 in the federal appellate courts, some stalwart holdouts remained—and chief among them for Pennsylvania appellate practitioners was the Pennsylvania Superior Court. I have always maintained that it is better to be subtly persuasive than to fail to be persuasive at all, and thus I never lost hope that the Superior Court might someday see the wisdom of allowing advocates to cite to that court's own unpublished, nonprecedential rulings for their persuasive value, hopefully sooner rather than later.

An important impediment fell by the wayside when the Superior Court began posting at its own website that court's unpublished opinions in addition to the court's published rulings. When I began advocating for this result back in December 2000, online access to unpublished Superior Court rulings was not available. Rather, those unpublished opinions were traded on a clandestine basis among lawyers who represented certain kinds of clients in certain kinds of cases.

The online availability of unpublished, nonprecedential Pennsylvania Superior Court rulings confirmed one important truth. The fact that a Pennsylvania Superior Court decision was announced by means of an unpublished ruling did not mean that the court's opinion took the form of a slapdash or haphazard undertaking. Rather, on the contrary, many unpublished Superior Court opinions are lengthy and carefully reasoned, leading some to wonder whether any sensible criteria exist for determining whether a given Superior Court decision will be issued as published versus unpublished.

Now we are finally less than a month away from when these long-awaited amendments to Pennsylvania Rule of Appellate Procedure 126 will take effect. The amendments will allow advocates and parties to cite to any unpublished, nonprecedential memorandum decision of the Superior Court filed after May 1, 2019, for the decision's persuasive value. You will recall that the federal rule change was also prospective, on a forward-looking basis from Jan. 2, 2007.

Aside from congratulating ourselves that reason has finally triumphed over unfounded fear of the unknown in this respect, let me briefly review when advocates might want to cite to unpublished Pennsylvania Superior Court opinions issued after May 1, 2019, and when they should not.

To begin with, in appeals pending in the Superior Court, when on-point precedent exists from either the Pennsylvania Supreme Court or the Pennsylvania Superior Court, advocates will need to and should cite to that precedent instead of citing to unpublished, nonprecedential decisions. However, when no on-point precedent exists, advocates will want to and should take advantage of the ability to cite to the Superior Court's relevant unpublished opinions in the same manner that advocates would currently cite to nonbinding opinions from the Pennsylvania Commonwealth Court or from appellate courts in other states for their persuasive value. In other words, when citing to an unpublished Superior Court opinion in that court, advocates must go the extra step to show not only does a helpful unpublished opinion exist, but they also must demonstrate why that helpful decision is of persuasive value.

To summarize, advocates handling a Superior Court appeal should first look for helpful binding precedent from higher courts. Then advocates should look for binding precedent in the form of earlier, on-point published Superior Court rulings. Only after those two searches turn up nothing of use should advocates consider citing to unpublished Superior Court opinions for their persuasive value, which of course will require showing how and why those opinions are in fact persuasive.

After 19 years of trying to make this very change happen, it is gratifying to see that the Pennsylvania Superior Court next month will finally allow advocates to cite to that court's own unpublished, nonprecedential opinions for their persuasive value. It is now time for me to move on to advocating in favor of those many other ways in which appellate practice in the Pennsylvania state courts could be improved by adhering more closely to the approaches and procedures used in federal court, a subject that is sure to provide numerous ideas worthy of consideration in the months ahead.

Howard J. Bashman operates his own appellate litigation boutique in Willow Grove and can be reached at 215-830-1458 and via email at [email protected]. You can access his appellate web log at http://howappealing.abovethelaw.com/ and via Twitter @howappealing.