Tuesday, May 03, 2011

Why read unpublished opinions

With opinions available on court websites and individually numbered on Westlaw, the line between published and unpublished opinions is fading. Judges will remind you unpublished opinions have limited precedential value, but even they cite them from time to time (as Judge White recently did on page 4 of United States v. Robert Jackson, found here). Why else should you read them?

Build and maintain a standard of review database

If you are going to write appeals, you're going to need to know the standard of review for your issues. I keep a folder of files labeled "sentencing," "motion to suppress," "motion to dismiss," etc. Each file contains a Wordperfect document where I have copied and pasted from 6th Circuit opinions what the standard of review is for that particular issue. When it comes time to write a brief on the issue, all I need to do is copy and paste into my brief.

Keep track of the Bostic objection

I'll probably post later in the week about the moving target that is the Bostic objection. What needs to be said, and when, seems to constantly change and depends greatly on what panel your case ends up in front of (or the mood of the panel that week). Sentencing appeal decisions are on the Sixth Circuit website almost every day. Checking in from time to time will help you make a better guess about what the proper incantations are.

Get a sense of what is going on in other districts and the general mood of the Court

In the Eastern District of Tennesee, many of our plea agreements contain appeal waivers that do not preserve any sentencing issues. Straight up, sentencing is left to the judge and there's no crying about it later. A recent unpublished opinion,on an appeal from the Eastern District of Michigan, gave me new ideas about language that might be put in those waivers. You can find it here (the waiver discussion starts on page three).

I also found it useful to read the Sixth Circuit's take on challenges to the Career Offender guideline. Starting at the last paragraph of page seven of this opinion, Judge Rogers gives a good overview of why such challenges will not have much traction with the Sixth Circuit. This is not to say the argument should not be made, but it gives you a better picture of what wall you are attempting to scale.

So, take some time to read unpublished opinions. Or at least come here to see if any are interesting enough for us appellate geeks to blog about.


Kevin Schad appellate division SDOH said...

great advice!

Clare Freeman, WD Mich said...

Great post! Thanks! Clare