This fall the Wisconsin Supreme Court will revisit the issue of whether to permit citation of unpublished Wisconsin Court of Appeals opinions. The issue is scheduled for hearing on October 14, 2008. The current rule forbids citation of unpublished opinions “as precedent or authority, except to support a claim of claim preclusion, issue preclusion, or the law of the case.” Wis. Stat. § 809.23(3). In January, the Wisconsin Judicial Council filed a petition asking the court to amend the rule to permit citation of unpublished opinions “for [their] persuasive value.”
The court heard and rejected a similar petition in 2003. Then, as now, widespread electronic availability of unpublished opinions led many attorneys to believe that they should be allowed to cite the opinions in their arguments. Opponents of the amendment have claimed that permitting citation of unpublished opinions will make research more burdensome and costly, though, as Beth Ermatinger Hanan has noted in her helpful article on this topic, no legal aid or public interest groups came out against (or in favor of) the rule change proposed in 2003. The current petition seems more likely to be granted than the 2003 petition was, because of the recent change in the federal rules to permit citation of unpublished opinions in the federal courts. Fed. R. App. P. 32.1.
As a teacher of legal writing and research, I have some sympathy for the arguments against permitting citation of unpublished opinions, because allowing citation of these sources will expand the scope of relevant research on so many Wisconsin issues. Still, I support the petition and hope that the court changes the rule. I think that in reality, many practitioners already read the relevant unpublished opinions on a topic, because many of them are useful research tools even though they cannot be cited. During my own appellate work, for example, occasionally I have found unpublished opinions to be valuable resources, containing interesting arguments supporting or challenging my own position, or helpfully summarizing some area of the law. In any case, they are widely available, easily accessible, and often read. Permitting their citation seems unlikely to greatly increase the research burden on Wisconsin attorneys.