When confronted with an adverse ruling of the Superior Court, it may come as some consolation to the appellate advocate that the Superior Court has chosen to issue the decision as an unreported, non-precedential opinion. Indeed, the Superior Court issues the vast majority of its decisions as unpublished memorandum opinions that have no precedential value. These opinions are not posted to the Superior Court’s Web site, the opinions do not appear online at Westlaw or LexisNexis, and they are often not readily available to anyone other than the trial court judge and counsel for the parties.
Although an appellate advocate may feel some degree of relief that his or her appellate loss is unlikely to come to the widespread attention of the general public or even the legal establishment, there are circumstances where it would be in the client’s interest for the losing counsel on appeal to consider asking the Superior Court to transform a non-precedential loss into a published opinion having precedential value. To be sure, this may sound counterintuitive at first. For why would a client or its attorney, having suffered a loss on appeal, ask that the ruling which delivered that unwelcome news be turned into a published opinion that will then bind the issuing court and lower courts in future cases?
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