As many people know, the law arises primarily from two sources. First is the statutes, ordinances, and regulations promulgated by federal, state, and local governments and governmental bodies. The second source is caselaw – written decisions (opinions) from appellate courts that provide precedent for subsequent cases. Lawyers routinely use both kinds of law as we represent our clients in settlement negotiations, at trial, and on appeal.
Wisconsin caselaw consists of the written decisions of the Wisconsin Supreme Court and the Wisconsin Court of Appeals. While all Wisconsin Supreme Court opinions are published, the Court of Appeals determines in each case whether the decision should be “published” or “unpublished.” Wisconsin statutes set forth criteria for whether a decision should be published. Wis. Stats. § 809.23. Generally, a decision should be published if it addresses significant issues, creates a new rule or clarifies an old one, or resolves a conflict between previous decisions. Relatively few Court of Appeals cases are published. For example, according to the Court of Appeals Annual Report, only ten percent of 2015 Court of Appeals cases were published.
Why do we care whether a decision is published? For many years, in Wisconsin and many other jurisdictions, only published decisions could be used as precedent in subsequent cases. This rule caused much frustration for attorneys and limited the resources we could use in the zealous representation of our clients. Countless times we have found the perfect case, one that establishes beyond doubt that our client will prevail, only to realize that the case is unpublished and therefore of no use.
In 2009, that changed in Wisconsin. That year the Wisconsin Legislature amended Chapter 809, the Rules of Appellate Procedure, to provide that certain Court of Appeals opinions released on or after July 1, 2009, may be cited for their “persuasive value.”
Use of these decisions remains limited. The opinion must be authored by a judge or a three-judge panel; memorandum decisions, orders, and opinions “per curiam,” or by the court, cannot be cited. Unpublished decisions provide only persuasive authority, not precedent, and therefore are not binding. In practice, however, this distinction is not as significant as it sounds. Sometimes a case is cited for a bright-line rule that is binding precedent, but often an opinion is useful for its analysis; this is where the persuasive authority of unpublished opinions can be helpful.