Month: October 2016

Citing to Unpublished Opinions

Thanks to Westlaw and Lexis, attorneys practicing in federal courts have access unpublished district court opinions.  Because they are so numerous, you will often find that an unpublished case addresses a relevant factual or legal issue, but not a published decision.  Sometimes, it seems, you can find an unpublished district court opinion that says just about anything.  This entry discusses how the opinions should be cited; and because the official citation format has some drawback, I offer some common sense observations about when you may want to use use a shortened form.

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The Official Citation.

Generally, the legal citation authorities recommend that citations to unpublished legal opinions include case name, case number(a.k.a. docket number), online citation (i.e., the database ID), pin cite, court and full date.  (Link, Link.)

For example:

Long v. DHS, No. 14-807, 2015 WL 3961312, *3 (D.D.C. June 29, 2015)

A few points:

  • Case name is underlined or italicized.
  • Use a * (star) before the page number because the reference is not to a consecutively bound book, but to a document that begins on page *1.  The star tells us that the cited information is on *x of the original slip opinion, not the page of the onscreen or printed database entry.
  • The case number is often called the docket number, meaning the unique identifying number assigned to the proceeding in the particular court, usually a combination of year the action was filed, judges initials, type of matter and how many cases were filed before it that year.  (I dislike the term “docket number” confusing, because I use “docket number” to refer to a number assigned to a specific document filed with the court appearing on the “register of action”.  (Link.))
  • The use of the case number and full date would help someone find the slip opinion if they did not have online access, and instead wanted to head to the court and look up the document manually or go to the Court’s website to find the opinion, if it is available there.

Using Full Citations to Unpublished Opinions on Westlaw and Lexis US District Court Decisions in Federal Court Papers Is a Waste of Time.

Often, the full citation is not helpful, has drawbacks and may undermine the credibility of your authority.  Instead, I suggest that attorneys omit the case number entirely and use only the year.  Don’t follow my advice, however, if your audience (i.e. the Judge) insists on strict blue book citations or doesn’t have access to the databases.

Generally, and especially in USDCs, judges and their clerks pull the decision from Westlaw or Lexis by typing the ID number.  The case number and the full date are not going to help and only get in the way.  The problems are many:  the extra information adds length to the citation, taking up more room in your brief and breaking the train of thought of the reader; draws attention to minutia, which is mentally wearing on your audience; cite checking takes longer; using them will cost your client money and slow down the drafting process; and there’s more opportunity for errors.  The full citation draws additional attention to the fact that you are relying on an unpublished opinion:  the court will think obscure, foreign and different, weak authority – compared to safe and authoritative opinions the court is comfortable to rely on.  The judge is probably going to think this anyway, but why highlight the fact?

You need the year, so that the court can quickly determine if the case is recent.  The Westlaw/Lexis citation is enough to let the judge know that the case is not in an official reporter.  If the case was decided last month, you might want to give the full date, just to let the judge know this is really the latest in jurisprudence (although I doubt it is going to make a difference and if it did, you’d be better off discussing the fact in text).

Unless you are still writing for your 1L legal writing instructor, save your time, reduce errors, shorten your brief, and avoid undermining your persuasiveness by providing citations with the relevant information.

Notice of Joinder and Joinder: Cost Effective for the Client, But Do It Right

A joinder is an alternative to filing a motion seeking relief on the same grounds as a motion filed by another party.  It is efficient for the client and less work for the Court.  The joinder asks the Court for the same relief already requested in another motion, but in the name of the joining party. A party can join the entirety of another party’s motion, join in certain arguments, or move on new relief while joining in part of another motion.

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Joinders are usually short and simple.  The point is to save everyone work when the arguments are already made and need no further argument.   It is usually enough to state how the grounds for relief apply to the joining party.

Your papers.  You will want to give notice of your joinder as you would for a motion, indicating that your client will seek the same relief based on the same grounds in the pending motion.  Include a memorandum of points and authorities that explains why the Court knows the issues are the same.

Timing.  Joinders have to be filed with the same notice as regular motions.  See Barak v. Quisenberry Law Firm, 135 Cal. App. 4th 654, 660-662 (2006) (joinder allowed when timely filed).

Basis for Relief.  Unless it is plainly obvious, the papers should include an explanation and/or evidence establishing that the joining party is entitled to relief.  In particular, motions for summary judgement are typically not suitable for joinder, as the moving party bears the burden of showing that there are no disputed issues.  However, even if the issues are identical, the party must file its own separate statement.  See Village Nurseries, L.P. v. Greenbaum, 101 Cal. App. 4th 26, 46-47 (2002); Frazee v. Seely, 95 Cal. App. 4th 627, 636-37 (2002).

The amount of detail will vary with the circumstances.  In a recent First Circuit case, the Court explained this:

While Federal Rule of Appellate Procedure 28(i) permits co-appellants to “adopt by reference a part of another’s brief,” as we have reminded litigants in the past, “[a]doption by reference cannot occur in a vacuum and the arguments must actually be transferable from the proponent’s to the adopter’s case.” United States v. Brown, 669 F.3d 10, 16 n. 5 (1st Cir. 2012). Therefore, where, as here, an appellant “offer[s] no explanation as to why [his co-appellant’s] arguments pertained to him,” such “textbook perfunctory” treatment waives the appellant’s attempts to adopt-by-reference his co-appellant’s arguments. Id. (emphasis omitted); see also United States v. Espinal–Almeida, 699 F.3d 588, 599 n. 9 (1st Cir. 2012) (a criminal defendant’s mere statement that he “joins in any and all other arguments raised by the other criminal co-defendants that are applicable to his case” is not sufficient (alterations omitted)).

U.S. v. Ramirez-Rivera, 800 F.2d 1, 12 n.1 (1st Cir. 2015).