What part of don’t don’t you understand

Friend and colleague Mary Jane (M.J.) Goodwin suggested I blog on the propriety of citing unpublished appellate opinions as legal authority in other cases.  Are attorneys really doing that?  M.J. indicates they are, for example, citing State v. Hercheck to get DUI charges tossed.  She’d love to cite SCDSS v. Rene in prosecuting a termination of parental rights case.

South Carolina Appellate Court Rule 268(d)(2) states, “Memorandum opinions and unpublished orders have no precedential value and should not be cited except in proceedings in which they are directly involved.”  These rules are promulgated by the South Carolina Supreme Court and when my Supreme Court tells me I “should not” do something, I am inclined to listen.

Who are these attorneys brazenly ignoring the directives of our Supreme Court?  They’re much braver attorneys than I. While I’ve been critical of these sorts of unpublished opinions, I still don’t cite them as authority in other cases.  M.J. wonders what she should do when she encounters such attorneys improperly citing unpublished opinions as authority. Perhaps contempt?

As family law attorneys we are so used to prosecuting constructive contempt–contempt that takes place outside of the court’s presences–that we forget that for most of Anglo-American jurisprudence’s history the bulk of contempt has been direct contempt: contempt taking place in the court’s presence.  It’s only been with the development of courts with vast equitable powers, like family court, that constructive contempt has become an important part of litigation.

The Appellate Court Rules are in the nature of orders from our South Carolina Supreme Court.  Deliberately violating them is a form of contempt against the court.  So M.J., if you’re so fed up with opposing attorneys citing unpublished opinions from other cases as authority, ask the judge to hold opposing counsel in contempt.  Just let me know before you do this so that I can travel to Anderson to see how it all plays out.

Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.

Retain Mr. Forman
  • I have done no research on this but it sounds like an ethical problem to me. If it is an ethical violation, then it would also be an ethical violation to fail to report. Guess who is cranky after two solid days of trying a visitation case?

  • Greg, in this instance, I would have to agree with Thomas. Appellate Court Rule 220 would appear to be the rule which governs the “published versus unpublished” opinions. There is also a case, Lanham v. Blue Cross and Blue Shield of South Carolina, Inc., 338 S.C. 343, 526 S.E.2d 253 (Ct.App.2000), which addressed this issue. I would believe, as Thomas, that if an attorney knowingly (and an attorney certainly should know if an opinion is “published” or “unpublished”) fails to inform the family court judge that a case being cited is an unpublished opinion having no precedential value, that is, arguably, an unethical act and not an act in direct contempt of court. Always remember that attorneys have a perfect right to be stupid and uninformed…they do not have a right to knowingly commit acts of deceit and fraud upon the court.

  • Barry (and Thomas):

    I think M.J.’s query anticipates informing the court that the case being cited is unpublished. Citing unpublished opinions as binding authority (whether by omission or commission) violates the duty of candor to the tribunal but that’s not the question I thought M.J. was posing.

  • One could ask why these opinions are being published where everyone can read them and where they pop up in research if they’re not supposed to be used. We’ve diluted the concept of legal authority a lot already. Perhaps such opinions should be kept in a file cabinet in Columbia and mailed to the litigants.

  • I am going to refer the solo list serve to this blogpost. There was a question about this and an ensuing discussion where the responding attorneys seemed to say this was OK to do and pitched ways to do it. The attorney asking the question wanted to use an unpublished opinion and argued that the facts of the case (family court) were exactly like his facts and the Court would therefore want to follow the same logic/reasoning so he would (hopefully) end up with the same result as in the unpublished opinion. This post should be helpful.

  • Roy Stuckey

    I cite unpublished cases in the Marital Litigation in SC book if the case seems to provide fresh insights into how an appellate court is likely to rule. My sole purpose is to promote case settlement by making practitioners aware of the appellate courts’ tendencies.

    Every semester that I taught the Judicial Intership course at USC, I asked my students to ask the appellate judges for whom they were working these two questions: 1) how do you decide when not to publish a case; and 2) what is the reason for prohibiting lawyers from citing them. I never got a satisfactory answer to either question. The most consistent answers were 1) judicial whim; and 2) no idea. There was a time when citing unpublished cases was justified … not everyone had access to them. Today, I see no justification. If you were a family court judge, wouldn’t you like to be reminded (I assume most family court judges are aware of unpublished cases) how an appellate court has ruled on similar situations as the case before you? But for now, Greg is right. A rule is a rule, and you should not cite unpublished cases (although on appeal you can seek permission to do so).

    Would it be improper to suggest to a family court judge that he or she read the section of my book that discusses the issue of law in question, if it cites published and unpublished cases? I don’t think so.

    • Roy,

      I read and write about unpublished opinions all the time. Two relatively recent blogs (one involving an appeal I handled) discussed novel family law issues. One was on whether a family court judge can be sustained on appeal by finding she had made implicit credibility determinations. Another was on whether animal cruelty could be considered domestic abuse.

      However discussing unpublished opinions and citing them as authority are different issues. When the Supreme Court says we cannot cite such opinions as authority, I am amazed that attorneys attempt to do so, even if they note the opinion was unpublished. If one is not trying to convince the court to follow a ruling from an unpublished opinion, what is the purpose of citing it?

      You and I both occasionally write about unpublished opinions because these opinions sometimes raise interesting policy or jurisprudence issues. Still, such opinions are not “the law” in South Carolina.

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