Many of us have been there — tasked with the needle in a haystack research project or searching for that statement of the law or factual scenario that perfectly matches your case and would turn your motion into a guaranteed winner. And then you find the perfect case, only to see those dreaded words screaming out across the top of the opinion: “Unpublished” or “Not for Publication.”
Worse still, those blatant reminders are conspicuously missing, causing your happiness level to skyrocket, only to plummet upon discovering the asterisk-numbered paragraphs and citation to Westlaw or Lexis, which serves as a subtle reminder that the decision is, in fact, not published.
Crushed, you silently (or loudly!) weep and let a barrage of creative curse combinations spew forth. Then the inevitable thought creeps into your head: Do I cite the decision anyway and drop the classic footnote informing the judge that you cite the unpublished opinion not as precedent, but rather to inform the judge how the law has been applied or how the issue has been analyzed by other courts? Doing so gets the information in front of the judge’s eyes, but will certainly draw the ire of opposing counsel and possible sanctions. To what do we attorneys owe this frustration? GR 14.1.
GR 14.1 was adopted effective September 1, 2007, and governs the citation to unpublished opinions in Washington courts.1 The rule prohibits a party from citing “as an authority” an unpublished opinion issued by the Washington Court of Appeals.2 However, the rule allows a party to cite as authority unpublished opinions issued “by any court from jurisdictions other than Washington,” so long as it is permitted by the law of the issuing court.3
The rule was implemented for many reasons. First, it combined various rules pertaining to citing unpublished opinions into one generally applicable rule.4 Second, it was meant to resolve confusion as to whether unpublished opinions from jurisdictions other than Washington could be cited as authority.5
Prior to adoption, no rule addressed the issue and Washington courts had taken inconsistent approaches regarding whether unpublished, non-Washington opinions were proper authority.6 And third, then-existing rules addressing citation to unpublished opinions expressly applied to appellate proceedings, but not necessarily to other proceedings, causing confusion about whether a party could cite to them in Superior Court or administrative actions.7
Once adopted, GR 14.1 brought some clarity to these matters. However, the debate over the utility of limiting citation to unpublished opinions issued by the Washington Court of Appeals continued.
The Debate over Citing
Even prior to the adoption of GR 14.1, attorneys debated whether court rules limiting or prohibiting the citation to unpublished opinions were appropriate.8 Proponents of citing unpublished decisions point to the following, amongst other reasons, to support their position:9
• Citation to all opinions comports with a common law system.
• Greater transparency in the legal process exists when any opinion may be cited.
• Sometimes an unpublished opinion is the only decision on point or offers an identical factual scenario that may be helpful where no published opinion is factually relevant.
• Electronic research databases have made unpublished opinions widely available.
• Unpublished opinions may inform the debate regarding legal principles involved in a case.
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