Perhaps this has already been covered elsewhere, but it just hit me and it seems a little concerning, so I’m writing about it. I think it’s quite likely that by moving to publish previously unpublished opinions, institutional repeat litigators — like insurance companies — are disproportionately shaping the law of Washington in their favor. And that doesn’t seem like a good thing.
But first, some background: Like many courts, the Washington Courts of Appeals will “publish” some decisions but issue other decisions as “unpublished.” It’s a strange distinction, because both kinds of decisions are “published” on the Courts’ websites and are available on Westlaw and Lexis. The important difference is that, under Washington Court Rule 14.1:
A party may not cite as an authority an unpublished opinion of the Court of Appeals.
That’s a huge deal. Because an unpublished opinion cannot be cited to future courts (either as binding or persuasive authority) unpublished opinions will have no effect on the development of the law in Washington. In future cases an unpublished opinion might as well not even exist. And we’re not talking about a small amount of cases; there are many more unpublished opinions than published opinions issued in Washington.
As I said, lots of courts do this. However, in my experience, once an opinion is unpublished it generally remains unpublished. I recall there being a one instance on the Second Circuit where a previously unpublished opinion was subsequently published, but that was a special case involving a criminal sentencing issue. It just didn’t really happen that often, or at all.
But in Washington it seems to happen all the time. After an unpublished opinion is released the parties (presumably the winning party) can move to request that an unpublished opinion be published. I have no idea how often such motions are made or how often they are granted, but the mechanism is there, and since starting this blog I have come across a good number of previously unpublished opinions that are subsequently published on the motion of the winning party. It appears to be quite common.
So why do I care? Well, the availability of the motion to publish, and the Courts’ apparent willingness to grant such motions, means the parties have a role in determining whether an opinion is published or not. Since the only difference between publishing and not publishing applies to future cases, the incentive to make motions to publish is not equally distributed across all litigants. Who is going to care more about whether an opinion is published: an oft-litigating insurance company (for example) or an individual litigant for which the case is her first (and hopefully her last) interaction with the legal system? If the individual wins her case then that’s it! Why pay a lawyer to prepare and file a motion to publish the opinion? Get on with your life! The calculus is a different one for a repeat player.
Now, of course, the judges still have the ultimate power to grant or deny a motion to publish. But my guess is that institutions, governments, corporations, or other entities that are repeat players in the court system are the ones that file the vast majority of motions to publish. And they will only move to publish the cases that they win, not the cases that they lose. So even if only a small percentage of the motions are granted, I’d still imagine that of all the unpublished to published decisions, a large percent of them favor repeat players. Accordingly, if my guess is right, then the availability of the motion to publish results in the skewing of the published — and therefore the citable — opinions in Washington State.
It may be that these repeat-player corporations win a greater number of appeals generally, and that therefore the published reports would naturally contain more pro-corporation decisions than pro-individual decisions. But that’s not the point. The point is that only the repeat players have the incentive to dip into the pool of unpublished decisions and pull out the ones that will best serve them in future cases. Since they are the only ones doing that, the pool of published decisions will be altered in their favor. And as anyone who has tried to do legal research in Washington knows, it is often hard to find a published opinion on point that you can use in your brief. An opinion here or there could really help and affect the outcome of a case.
Maybe this isn’t a huge deal. I certainly have not taken the time to conduct any sort of investigation into whether the data support my little back-of-the-envelope theory. But the incentives are certainly there for the skewing effects to happen, and that seems bad enough. I think if you’re going to have a dual system of citable and non-citable opinions, you need to ensure that there are no methods by which repeat players can game the system to their benefit. I’d be more in favor of a system where motions to amend are eliminated or extremely disfavored.