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Defying a barrage of opposition from hundreds of federal judges and lawyers, a U.S. Judicial Conference advisory committee last week endorsed a proposed rule that would make it easier for litigants to cite unpublished opinions in federal court. The proposal still has formidable obstacles ahead of it before it becomes binding-including approval by the full Judicial Conference and the U.S. Supreme Court-but the action represented a significant milestone in the ongoing debate over unpublished opinions, which dispose of more than 80% of the cases before federal appeals courts. “This is a good first step toward improving the openness and transparency of our court system,” said Richard Frankel of Trial Lawyers for Public Justice. The Advisory Committee on Appellate Rules voted, 7-2, in favor of the rule, which states that “no prohibition or restriction may be imposed” on the citation of unpublished opinions. Federal circuit courts of appeal would still be allowed to specify how much weight they will give to unpublished opinions. But rules in four U.S. circuit courts of appeals that prohibit virtually all citation of unpublished opinions-the 2d, 7th, 9th and Federal circuits-would be swept away by the new rule. The chief judge of the 2d Circuit, John Walker Jr., who testified against the rule, said it would prompt a “sea change” in the way judges do their work. One of the dissenters on the committee was Sanford Svetcov, a partner in the San Francisco office of New York-based Milberg Weiss Bershad Hynes & Lerach, who described unpublished opinions as “junk law.” The committee action mirrors a preliminary vote it took last year on the same issue before wording of the proposal was disseminated for public comment. Another member, Judge T.S. Ellis III of the U.S. District Court for the Eastern District of Virginia, also voted against the proposed rule, though in absentia. Judges and lawyers in the 9th Circuit and elsewhere had bombarded the committee with more than 500 letters describing the often cursory rulings as an essential time-saving device for overburdened judges. Opening these routine dispositions to citation would force judges to spend more of their limited time on them, critics said. Research costs negligible? Supporters of the rule said unpublished opinions, no matter how hurried, represent the judgments of courts and should be citable. Since most unpublished opinions are already available online, supporters also say added research costs are negligible. “A lawyer ought to be able to tell a court what it has done,” said John Roberts Jr., a member of the advisory committee and a judge on the D.C. Circuit. Judge Carl Stewart of the 5th Circuit, another member of the committee, also said it was unfair to lawyers who are zealously representing their clients for courts to say, “You can’t tell me I took a contrary position” in an unpublished opinion. Judge Diane Wood of the 7th Circuit said the practice was the result of a “devil’s deal” made 30 years ago as a way of reducing judges’ workload. But she told the committee that “[e]very last word coming out of the courts is available. We’re not talking about a ‘secret law’ problem,” she said. The committee turned back a proposal by member Mark I. Levy, counsel to the Washington office of Atlanta-based Kilpatrick Stockton, that would have made the new rule prospective, so that only those unpublished opinions issued after the rule took effect would be citable. The D.C. Circuit adopted such a rule when it allowed citation in 2001. Levy said that would give judges “a chance to adjust their opinion-writing practices.” But Stewart said, “I like the purity of the rule,” and Levy’s amendment was withdrawn-though the committee suggested that prospectivity would be an acceptable limitation on the new rule if that was the only way it could be approved. The next stop for the proposal is the standing rules committee of the Judicial Conference, followed by the full conference and then the Supreme Court.

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