Chapman Law Review
California's Rules of Court prohibit the citation of unpublished state court opinions. Courts and litigants, however, may still cite unpublished federal opinions and rulings and unpublished opinions from other states' courts. This may result in problems, such as limiting courts' and parties' authorities to a skewed sample set, and the covert importation of inapplicable, stricter federal court pleading standards in state court cases. COVID-19 was a stress-test that brought the problems with California's citation rules into focus. The pandemic led to a flood of claims for pandemic-related business interruptions by insured business owners against their insurance companies. While state courts upheld some of these claims and overturned others at the pleading stage, federal courts took a virtually uniform approach in dismissing complaints by insureds. As time went on, however, litigants in California state courts could not rely on any of the favorable state court rulings, as they were prohibited from citing those cases. Instead, courts and parties turned to the next best source of authority: California federal court rulings, which led to a skewed perspective of the caselaw.
This Article initially contemplates overturning California's prohibition on citing unpublished state court cases altogether, and evaluates the benefits and disadvantages of such a step. Ultimately, this Article concludes that a less-dramatic solution may solve some of the most acute problems with California's citation rules: the simple proposal that courts and litigants interpret the rules as written, rather than in the expansive manner that courts have interposed. Under this approach, courts and parties can cite unpublished superior court opinions, so long as they are not issued by superior court appellate divisions, as persuasive authority. In situations where an unexpected technology, disaster, or pandemic gives rise to widespread litigation, this approach would give California state courts a more complete picture of the law.
Michael L. Smith, The Citation of Unpublished Cases in the Wake of COVID-19, 25 Chap. L. Rev. 97 (2021).