The Problem With Unpublished Opinions

I'm not a big believer in unpublished opinions. First of all, in an age of West and Lexis there is no such thing as an unpublished opinion anymore. There are only opinions which are accorded weight and opinions which are not.

In a perfect world this should break down to "published" opinions - which establish precedent - and "unpublished" opinions - which are merely advisory. Unfortunately, the world's not perfect and the effect of an unpublished opinion seems to often depend upon who's relying upon it.

It's sometimes hard for me to get a judge to follow the words of a statute or follow established precedent. I handed one judge a published case and pointed out a precedent favorable to my client. I can't prove this and may be absolutely wrong, but it looked to me like the judge looked to see which court of appeals judges had participated in the opinion; he then looked up at me and said, "Mr. Lammers, I don't think this is the law in Virginia." Of course, that's an extreme case. However, it sets the scene for you as to what I'm facing when I present an unpublished opinion:

Me: Judge, I have a case with the exact same fact pattern as this case, Smith v. Commonwealth. It's not a published opinion but it shows how the court of appeals expects the published opinions to be applied.

Prosecutor: Your Honor, that doesn't carry any weight.

Judge: Mr. Lammers, I'm afraid Mr. Prosecutor is correct. This case does not have precedential value. Additionally, the case at bar can be distinguished from Smith because in Smith the defendant was wearing a yellow shirt and in this case your client is alleged to have worn a green shirt. Motion to strike over ruled.

Compare with a prosecution presentation:

Prosecutor: Judge, I have a case with the exact same fact pattern as this case, Smith v. Commonwealth. It's not a published opinion but it shows how the court of appeals expects the published opinions to be applied.

Me: Your Honor, that case is - at best - advisory. It doesn't carry any weight.

Judge: Mr. Lammers, this case has exactly the same fact pattern as the allegations against your client. I think this is the way that the court of appeals would apply the law. Motion to strike denied.

Does it happen that way every time? Nope, just often enough that every defense attorney knows the scenarios by heart.

Anyway, if I had my druthers unpublished opinions would say something like this:

[Unpublished] Jones v. Commonwealth - Applying McGillicuty v. Fairfax, the answer to appellant's question is: No.

If more elaboration is required the opinion ought to be published so that it will have it's due weight.