Reference Question of the Week

How is it determined which cases will be put on Westlaw/Lexis? Why are some unpublished and is there criteria? I assume ALL court decisions are not on there (i.e. most divorce cases...) but is that true?

Answer:

If there is a question or disagreement about the law that has been or should be applied in a particular case (either substantively or procedurally) either party may appeal to a higher court. The higher court is asked to rule on the law to be applied, but does not make decisions about the facts of the case. Most of what is in published case reporters and on Lexis and Westlaw are these decisions of appellate courts analyzing the law applied to the facts or procedure in a particular case. In addition a trial court can issue an opinion on a motion made by a party. For example, a motion for summary judgment can result in an opinion that as a matter of law a particular outcome is required in a case. This, too, could be reported in both books and online databases.

Generally judges can designate a decision as "to be reported" or "not to be reported." The decision about which judicial opinions actually get reported is sometimes a joint decision made by the judge issuing the opinion and the "official" Reporter of Decisions. In some jurisdictions judges may only designate for reporting those opinions that are of "substantial interest," relegating the majority of decisions to unreported status. Reported decisions are reviewed by other judges or perhaps edited by the Reporter of Decisions, if there is one. Unreported decisions are not as thoroughly vetted and edited, since they are deemed to be merely "applying existing law" and don't need to go through the same rigorous process. A growing number of court decisions are not published in case reporters. For example, only 7% of the opinions of the California intermediate courts (the Courts of Appeal) are published each year.

Some courts have official reporters and others do not. There is no official reporter for U.S. District Courts opinions or even opinions from the U.S. Circuit Courts of Appeals. Unreported decisions of the lower federal courts are those not published in F. Supp. or F. Supp 2d, for the District Courts, and those not reported in F., F.2d, or F.3d, for the Circuit Courts of Appeals.

Attorneys wanted access to additional decisions, and the costs involved in adding cases to a database is much less than including them in a print volume. So Lexis and Westlaw started adding unpublished opinions, which may or may not have limited precedential value, to their case law databases. Because of the online availability of unpublished U.S. Court of Appeals cases West publishes a reporter of "unreported" Circuit Courts of Appeals decisions, called the Federal Appendix.

Unreported decisions issued by the courts are binding on the parties, but are not generally accepted as precedent - even by the issuing court. Some jurisdictions do not allow citation to unreported cases; others allow it only if the citing party attaches a copy of the case. Increasingly (in 9 of the 13 Circuits) Courts of Appeals allow citation to their own unpublished decisions with certain restrictions. An attorney must check the Local Federal Court Rules for details.

Recent litigation questioning the constitutionality of prohibiting citation to unreported cases has brought increased interest in this issue. A proposed amendment to the Federal Rules of Appellate Procedure, FRAP 32.1, would require all federal circuits to allow citation to unpublished decisions issued on or after January 1, 2007. The U.S. Supreme Court has until May 1, 2006, to act on this rule.

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