Since the beginning of our legal careers we have been taught to only consider and research published opinions. However, in my experience that does not mean to ignore unpublished opinions. We are continuously researching insurance coverage matters and here are 3 reasons why unpublished court opinions should be reviewed as part of any research project or on a regular basis as unpublished decisions are issued all the time and in fact much more often than published opinions. Those reasons are:
- Although the unpublished case itself cannot be cited in your papers, the court in those cases renders findings and gets to a conclusion using the most current accepted case law authority regarding the issues. All such authority includes published opinions, and such authority can certainly be cited. Even though the unpublished case does not include some new aspect of the law to make that case publishable, it still relies upon cases that are good law. Just don’t cite the unpublished case.
- Unpublished opinions include the analysis of very bright legal minds. Often we can learn from such analysis and sometimes you can find factual situations that are closer to your case than the seminal case on the issue and a Court’s application of the law to those facts may be more helpful than the published opinions that deal with a different industry, business or set of facts. Again, just don’t cite the unpublished opinion but use the analysis, or logical reasoning as applied to your case.
- The unpublished opinions will save you time getting to the analysis and case authority you are looking for. Clients want nothing more than an attorney who can save time and efficiently move through legal research. Ergo, don’t ignore those unpublished opinions that appear on point. We often use Versuslaw.com which will list all published and unpublished decisions as part of its search results, they are designated with a “[U]” and begin with text in bold letters advising that the case is unpublished, so you don’t mistakenly site the case.
In our office we are researching Insurance Coverage issues all the time, and we follow all opinions whether published or unpublished. We learn much from the courts application of established law in different circumstances. Clients never have the exact same fact pattern as found in published decisions. Every case is slightly different with a twist one way or the other. The review of all cases exposes us to Court decision that, although not identical. are much closer to the case on which we are working. We also get a feeling as to the judicial tendencies of the different districts and divisions. This also applies to Federal law as well as Federal courts are applying state law to decide matters. Insurance substantively law lies with the states and is not preempted by state law. Plus, we often end up in Federal Court.
So, we find unpublished opinions to be helpful. They help us build our library of points and authorities from which we write coverage opinions and counsel our clients.
Author: Kevin Callon Boyle is a Coverage Attorney in Calabasas, California who has litigated all types of business matters with an emphasis on employment law. He also, is a licensed insurance producer and provides risk management services for his clients. The Law Offices of Kevin C. Boyle provides coverage opinions and counsel’s business clients and carriers as to coverage issues. Call for a free consultation at (818) 591-1755.