An anxious young attorney looks at his watch and sees that it’s 4:30 p.m. He quickly opens up his computer’s Internet browser and clicks on the link to the Court of Appeals’ website, specifically, the page that hosts appellate opinions. (It’s bookmarked for easy access.)
He then clicks on the link to the page that hosts unreported opinions (or, to be clear, the page that lists the terms, case numbers, names of parties, and the judges who issued the unreported opinions). (Also bookmarked.) He hurriedly browses through the unreported opinions issued that day.
The opinion in his case has been issued! But it’s unreported, so he has no idea whether his client’s judgment was affirmed. It is now 4:33 p.m. Against his better judgment, the young attorney picks up his phone and dials the clerk’s office for the Court of Special Appeals.
“Clerk’s office,” the clerk answers against her better judgment. (The court closes at 4:30 p.m.)
“Hi, um, I am an attorney for a party in a case in which an unreported opinion was just issued, and I was wondering if you could tell me what the court’s mandate was,” the young attorney coyly asks.
“What’s the case number, sir?” patient clerk replies.
The young attorney tells her the term and case number of the case.
“Judgment of the Circuit Court for Anne Arundel County affirmed. Anything else, sir?” asks the clerk.
“Thank you! That’s all. Have a great day,” says the excited young attorney, who has just found out that he won the first case he briefed and argued before the Court of Special Appeals.
He shoots an email to the supervising partner on the case: “We won!”
“Great! What did the court say?”
“I don’t know, but we won!”
Up until today, that was the typical experience for an attorney whose appeal was decided in an unreported opinion by the Court of Special Appeals. (Or maybe I’m the only one who can’t wait two days for the mail to arrive.)
This means that unreported opinions, which encompass a whopping 90 percent of all cases in Maryland’s appellate courts, will now be easily accessible to the public. Previously you would need to take a trip to Annapolis to get copies of opinions, or since Jan. 1 of this year, have an online subscription to the Daily Record.
“Putting aside the debate regarding citation to unreported opinions, public posting remains key to the principle of transparency. I applaud Chief Judge Barbera and [Court of Special Appeals Chief Judge Peter] Krauser for this move,” said Mr. Klepper. “Next on my wish list is that the Court of Special Appeals would follow the lead of the Court of Appeals and begin listing the date of argument on its opinions.”
The debate mentioned by Klepper surrounds Maryland Rule 1-104 and the limitations it places on the use of unreported opinions in Maryland trial and appellate courts. Despite the new-found access, unreported opinions still cannot be cited as binding or persuasive authority, among other limitations.
Michael Wein has written extensively on this subject for the The Daily Record and the Maryland Appellate Blog, where he argued that “Maryland courts should begin permitting use of unpublished opinions at the very least for persuasive value, instead of imposing a blanket prohibition on their mention.”
I agree wholeheartedly with Wein, especially given that numerous other sources can be freely cited, such as law review articles or even a Daily Record blog. Nevertheless, the prospect of Maryland courts permitting the use of unreported opinions as persuasive authority appears to be waning.
According to the agenda for its April meeting, the Maryland Standing Committee on Rules of Practice and Procedure is considering an amendment to Maryland Rule 1-104, which would “expand the definition of unreported opinions to include unreported opinions from federal courts and unreported opinions of another State, district, or territory; to permit citation to an electronic database under certain circumstances.” There reportedly also could be sanctions for citing an unreported opinion for an impermissible purpose, including striking the paper in which the citation appeared.
The Maryland Appellate Blog reports the proposed amendment was taken off the agenda shortly before the April meeting and instead placed on the agenda for the May meeting. It will be interesting to see which way the Rules Committee goes on this.
I, for one, am excited to finally have easy access to unreported opinions. Notwithstanding the limitations on citing to them, I think these opinions will be a great resource when preparing appellate briefs and other trial papers.
As for how user-friendly the unreported opinion database will be (The Daily Record’s is organized by category) or whether the opinions will be available on legal research services like LexisNexis and Westlaw, only time will tell.