A JAILHOUSE LAWYER’S MANUAL
case provides the official way of referring to an opinion, and tells you where to find the text of the opinion in the correct reporter. Citations will be explained in Part D of this Chapter, but you may want to read that Part now.
Unfortunately, many opinions that are of interest to prisoners are “unreported” or “unpublished”—that is, they do not appear in the Federal Supplement or Federal Reporter volumes available in prison law libraries. Many cases that do not appear in a reporter are available on computer services like Lexis and Westlaw. Citations like “2000 U.S. App. LEXIS 12345” or “2000 U.S. Dist. LEXIS 12345” are Lexis citations. In the JLM, unpublished cases are generally cited to Lexis (“LEXIS”), and occasionally Westlaw (“WL”), and are always indicated with the text “(unpublished)” after the citation. Sometimes cases have book citations (such as “F.2d”) but the opinions are not actually printed; they are just listed in a table. In the JLM, table citations are included, where available, along with a citation to an electronic source.
You should note that a citation like “___ F. Supp. ___, 2001 U.S. Dist. LEXIS 12345” does not mean the case is unpublished, but that it is merely a recently reported decision that will be available in the Federal Supplement in the near future. You should check to see if this decision has been published in a reporter since the JLM was printed.
The JLM cites published decisions whenever possible. Courts generally prefer that you cite published cases, so you should research the rules of the court in which you are filing before you cite unpublished cases. Some courts may bar citations to unpublished cases altogether; some permit it in certain circumstances where specific requirements are met, such as serving a copy of the case on other parties and on the court. These rules can be obtained for a small fee from the court clerk (the pro se clerk in New York). At the very least, an unpublished case may help you predict the outcome of similar lawsuits. Many legal researchers find unpublished cases helpful because they can shed light on particular applications of settled law; in areas in which the law is unsettled, unpublished cases may provide the only insight into how a court may respond to a certain type of claim.
Recently, the Federal Rules of Appellate Procedure were changed, which affects your ability to cite to unpublished cases in certain situations. For federal appellate courts, you can now cite to any unpublished cases that were decided on or after January 1, 2007.22 You should note that most unpublished cases are not precedential, which means that courts do not have to follow their holdings. They can be cited, however, for their persuasive value. Also, you generally do not need to attach a paper copy of the case to your petition or brief, as long as the case is available on a publicly accessible database.23 Some jurisdictions have more specific rules. For example, many federal courts allow you to cite to unpublished cases even if they were decided before January 1, 2007.24
Fed. R. App. P. 32.1.
The two computer services mentioned above, Lexis and Westlaw, are examples of publicly accessible
3rd, 4th, 5th, 6th, 2007. 1st Cir. R.
10th, and 11th 32.1.0(a) (“An
disposition of not cite to its
this court may be non-precedential
cited regardless of the opinions as authority.
Circuit Courts allow citation to unpublished cases decided before unpublished judicial opinion, order, judgment or other written date of issuance.”); 3rd Cir. I.O.P. 5.7 (“The court by tradition does Such opinions are not regarded as precedents that bind the court
because they do not circulate to disposition of this Court issued and that there is no published
the full prior to opinion
court before filing.”); 4th Cir. R. 32.1 (“If a party believes … that an unpublished January 1, 2007, has precedential value in relation to a material issue in a case that would serve as well, such disposition may be cited if the requirements of
FRAP [Federal Rules of Appellate Procedure] 32.1(b) are met.”); January 1, 1996, are precedent. Although every opinion believed
5th Cir. R. 47.5.3 (“Unpublished opinions issued before to have precedential value is published, an unpublished
opinion may be cited pursuant to Fed. R. App. P. 32.1(a).”); 6th Cir. R. 28(g) (“Citation of unpublished permitted. FRAP 32.1(b) applies to all such citations.”); 10th Cir. R. 32.1(a) (“The citation of unpublished permitted to the full extent of the authority found in Fed. R. App. P. 32.1.”); 11th Cir. R. 36.2 (“Unpublished
decisions is decisions is opinions are
not considered Circuit Courts
binding precedent, but they may be allow citation to unpublished cases
as persuasive authority.”). However, the 2nd, if the cases were decided on or after Jan. 1,
7th, 8th, and 9th 2007. 2nd Cir. R.
23(c)(2) (“Citation to summary orders a subsequent stage of a case in which of estoppel or res judicata.”); 7th Cir. to support a claim of preclusion (res
filed prior to January 1, 2007, is not permitted in this or any other court, except in the summary order has been entered, in a related case, or in any case for purposes R. 32.1 (“No order of this court issued before January 1, 2007, may be cited except judicata or collateral estoppel) or to establish the law of the case from an earlier
appeal in the same proceeding.”); 8th Cir. R. 32.1a (“Unpublished opinions issued on or after January 1, 2007, may cited in accordance with FRAP 32.1.”); 9th Cir. R. 36.3 (“Unpublished dispositions and orders of this Court issued on after January 1, 2007 may be cited to the courts of this circuit in accordance with Fed. R. App. P. 32.1.”). When filing the D.C. Circuit Court, you can cite to its own unpublished opinions dating back to Jan. 1, 2002, but you can only cite
be or in to