When should I move to make an unpublished opinion published?

If you’ve brought a successful appeal in the Superior Court or the Commonwealth Court, and the decision is released as unpublished, should you move to make it published? Does it matter for your case whether this case is going to be a precedent in Pennsylvania law or not? In this article, we’ll discuss a few things to consider before publishing.

First, know your deadlines. If you have a case that is listed as unpublished, you have 14 days to move the Superior Court or 30 days to move the Commonwealth Court to publish an unpublished case. Although the court retains power over its dockets to change cases after the fact, the Internal Operating Procedures mark a requirement for parties to make such a request to within these timelines after the release of the unpublished decision.

Second, consider why the case was listed as unpublished. Cases are listed as unpublished for a number of reasons, none of which are articulated by the Court in individual cases. One might be because the case was not well litigated between the parties, and the Court feels it did not have the benefit of adequate briefing to make a decision that will bind future cases. Alternatively, the Court may have felt the case had unusual facts that led to an unusual outcome. As the old saying goes, “Hard facts make bad law.” For this reason, sometimes our Pennsylvania appellate courts feel constrained to prevent a case from immediately becoming precedent.

Third, consider whether it benefits your client to have a case published. If you’re the victor and you’ve won a case, it’s easy to want it to be published immediately. In rare cases, it’s not good for your client to have it published. Though the precedent involved is good for your client this time, it might not help institutional clients (such as corporations or the Commonwealth) in the future. Although “unpublished” is a misnomer, it is also true that published cases get wider distribution and are more widely discussed by legal practitioners. Your client may not want their name being cited in the future as the name of a precedent in their specific area!

Fourth, you should consider the factors listed in the Internal Operating Procedures (IOPs) of the Court involved. Each Court has their own factors they consider when deciding whether to publish a decision.

Conclusion

If you are working on an appeal and you need help, contact Cornerstone Law Firm. Our attorneys can help you through the appellate process here in Pennsylvania and give you guidance on every aspect of what to do with your case. We love helping other attorneys with complicated appeals, working as co-counsel or taking over cases that they don’t wish to prosecute or defend on appeal. Contact us today.