January 5, 2023
The sources of the law are many. When most people think of “the law,” they think of constitutions, statutes, and regulations. However, an important source of law is the common law, decisions by courts upon which future decisions are based. The common law is important in many areas, including torts, interpretation of contracts, and the rights and responsibilities of agents. However, not all opinions handed down by courts are created equally.
Recently a prospective client was engaged in a dispute with an adjoining landowner with unusual facts. The person came to me with an appellate court opinion that dealt with nearly identical facts. The person said to me: “This case will be an easy win for me, this case is exactly like my case.” I had to utter the phrase that lawyers often say that drives clients crazy: “It depends.”
The opinion that my prospective client was brandishing was an unreported opinion by an intermediate appellate court. Back in the day, the only appellate opinions that were available to people who were not parties to a case and their lawyers were appellate opinions that were published or “reported” in the matched volumes in law libraries. Lower courts were bound to follow these published decisions. With the advent of computerized legal research databases and the internet, some opinions that were not published became more widely available. Prior to 2015, the unpublished opinions of the Court of Special Appeals of Maryland, Maryland’s intermediate appellate court, were not available except to parties and in hard copy in selected libraries.
In 2007, the Federal Rules of Appellate procedure were amended to allow the citation of federal court decisions that have been designated as “unpublished” or the like issued on or after January 1, 2007. However, Maryland Rule 1-104 still prohibits the citation of unreported decisions of Maryland’s appellate courts as binding authority or even as persuasive authority.
The opinions of the Supreme Court of Maryland, formerly the Court of Appeals, are generally reported. However, the vast majority of the opinions of the Appellate Court of Maryland, formerly the Court of Special Appeals are not. On September 9, 2021, the Court of Special Appeals issued a statement that “it [was] no longer the Court’s policy to prohibit the citation of unreported opinions of federal courts or the courts of other states for persuasive value, provided that the jurisdiction that issued any particular opinion would permit it to be cited for that purpose.” However, the statement also reiterated that the new policy did not apply to unreported opinions from Maryland’s appellate courts.
For an opinion of the Appellate Court of Maryland to be reported, it must be reviewed by all fifteen members of the court and approved by a majority in advance before issuance, something required for reported opinions. However, the unreported opinions of the Appellate Court are the considered decision of three judges. The unreported opinions of the Court of Special Appeals generally have been of the same quality as reported opinions. Given that the unreported opinions of the Appellate Court and its predecessor, the Court of Special Appeals, now are generally available, there is no good reason why parties should not be able to cite them as persuasive authority when they can cite unreported decisions from the federal courts and many state courts. Maryland Rule 1-104 should be amended to allow the citation of unreported Maryland appellate decisions as persuasive authority. However, until that time comes to pass, unreported Maryland appellate opinions, such as the one brandished by my prospective client, cannot even be cited in Maryland’s courts.