President's Corner

By: Mark A. Gilchrist, Smith Haughey Rice & Roegge

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On February 18, 2015, the Michigan Supreme Court issued an Order, ADM File No. 2014-09, seeking comment on proposed amendments to MCR 7.215(A)-(C). The proposals were submitted by the Michigan Court of Appeals. The amendments of MCR 7.215(A) and MCR 7.215(B) seek to further define the term “unpublished” and offer clarification for Court of Appeals judges with respect to when an opinion should be published. The revisions to MCR 7.215(C)(1) address the precedential value of unpublished opinions, and the Court of Appeals requests a significant restriction of the use and authority of unpublished opinions.

Significantly, the amendment to the rule adds that “citation to such [unpublished] opinions in a party’s brief is disfavored unless the unpublished opinion directly relates to the case currently on appeal and published authority is insufficient to address the issue on appeal.” The suggested rule would further require that a party who cites an unpublished opinion “explain why existing published authority is insufficient to resolve the issue.” Practitioners who rely upon the use of unpublished opinions in their briefs will undoubtedly recognize how changing the authority of unpublished opinions from “persuasive” to “disfavored” will have a significant impact on the use and value of unpublished decisions.

MCR 7.215 states specifically that unpublished opinions are not precedential, however, it is generally understood and has been my experience in the vast majority of trial courts that unpublished opinions can be persuasive. Similar to a federal court opinion or even one from out of state, if the facts are analogous, the legal reasoning is solid, and the suggested rule comports with Michigan jurisprudence, it is not clear why use of an unpublished Court of Appeals decision should be codified as “disfavored.” There are a number of Michigan Supreme Court justices who have previously served on the Court of Appeals. Certainly, their unpublished opinions carry a fair amount of weight when trial courts are deciding issues of first impression and trying to predict how Michigan’s appellate courts would rule on a given issue.

Historically, there were issues of fairness regarding the use of unpublished opinions as each was not widely disseminated and it was perceived that larger or more well connected law firms could create their own data bank of unpublished opinions that were not accessible to all. That situation, of course, no longer exists as all unpublished opinions are accessible to any practitioner via the Court’s website, every legal research software site I have ever heard of, or by performing a simple Google search. As unpublished opinions are equally available to every practitioner, their use can no longer be questioned under notions of fairness or accessibility.

Likely as a result of an overall decline in litigation, the actual number of published Court of Appeals decisions continues to decline. Filings are down, and the Court is actually deciding fewer and fewer cases. Even if the percentage of published versus unpublished decisions remains constant, the number of actual published decisions has declined. Unpublished decisions, therefore, remain a vital aspect of advocacy and brief writing.

Lastly, while certain areas of law are richly developed and have a long history of consideration by Michigan’s appellate courts, other areas offer much less instruction from the higher courts and the utilization of unpublished decisions is even more critical. Unpublished opinions are critical in furthering a trial court’s assessment of how the appellate courts would rule on an issue which has not been previously established as precedential through a published opinion.

Unpublished opinions from the Michigan Court of Appeals should remain persuasive, rather than disfavored. The use of unpublished opinions is no longer one of fairness or accessibility, as every practitioner in the state has access to these opinions. The actual number of published Court of Appeals opinions is declining and the use of unpublished opinions is critical for instructing trial courts on issues that have not been previously decided via published opinions in the Michigan Court of Appeals. Certain areas of law are more undeveloped than others, and unpublished opinions can be very instructive for trial courts in their assessment of how a Michigan appellate court would rule on a new issue. As a result, I think the suggested amendments to MCR 7.215(C)(1) should be declined.

Categories: Volume 5 #4

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