Revamping California state courts’ prohibition against citing unpublished California appellate or superior court opinions would help practitioners and courts, McGuireWoods San Francisco partner Kevin Frankel and associate Christian Hochhausler wrote in a May 14, 2024, commentary in The Recorder, an American Lawyer Media publication.
Frankel and Hochhausler explained that many of the concerns that prompted the prohibition have become obsolete now that court opinions are available online. Critics of the unpublished cases rule say it now does more harm than good, particularly in complex matters where the only relevant California case law is unpublished. Judges have resisted changing the rule because of concerns about overburdening the courts, but the authors said this ignores the realities of modern law practice and the rule’s negative impact.
“Surely a court would be better off with the benefit of a unique, on-point, but unpublished case than having to decide an issue in a vacuum without any precedent to consider,” Frankel and Hochhausler wrote.