Lawyers Frustrated by Unreported Superior Court Cases
Opinions are generally published if they establish new law, apply existing law to a unique set of facts, modify or criticize existing law, resolve conflicts within the courts, involve a legal issue of public interest, or significantly contribute to the body of law, among other things. The judges on a case's panel take a vote to decide whether or not a decision is ultimately deemed precedential. If the attorneys on either side or the trial judge who handled the case feel that the opinion should have been reported as precedential, they have 14 days to make a motion.
"I think the court is conscious between the cases that attract attention and those truly worth reporting from a legal standpoint," Hare said.
Hare pointed to the recent decision in Stettler v. Allied Signal, which led to 18 cases transferred, as the type of opinion that should be left unreported because, despite a lot of legal interest, it applied existing interpretations of venue statutes to a familiar fact pattern.
The court's decision in Commonwealth v. Lynn, he said, was a good example of a high-profile case that was rightly issued as a reported decision, not because of media attention, but because the law ruled on a new application of a statute.
However, whether or not an opinion is worth deeming precedential is to some extent a matter of opinion.
"There are always going to be instances where perhaps what the judges think about the importance of the case might not be what the parties or other people think about it," appellate attorney Howard Bashman said. "It's difficult for the people on the outside to second-guess when you don't have the same considerations that the judges have."
Along with workload considerations, attorneys agreed that if the majority of the Superior Court's caseload were reported, the amount of new precedent created each year would be daunting.
"If every decision were published, there'd just be so much to sort through and you'd have to take into account all these decisions where you'd have to decide if you should cite everything that was pertinent," Bashman said.