Mail Call!

A reader who I gather is a law student has e-mailed this two-part question:

"Interesting blog but I'm curious about a couple of things. First, what is the origin of the title of this blog? Second, one of my professors mentioned that many lawyers complain about not being able to cite unpublished opinions and I wondered about the process your court goes through in deciding whether to issue a published vs. unpublished opinion?"

Although I have previously answered both of these questions, those responses were among the victims of the Great Blogger Implosion of August, 2005 (besides, it's always nice to hear from a reader, there aren't that many of you out there).


The name of this blog pays homage to a favorite television show of my youth, a rather cerebral western by the name of "Have Gun, Will Travel" which starred Richard Boone (pictured) as "Paladin," a hired gun with a conscience and a code of honor. The show aired in the late 1950's (when dinosaurs roamed the earth and there were only three networks and they broadcast only in black and white). The title also plays upon the nature of my job as an appellate judge which is to render opinions on all manner of legal subjects and which also involves a fair amount of travel, usually to my state's capital.

As far as the second question is concerned, the policy my court has adopted is to publish our opinions fairly sparingly and only when a majority of the panel members hearing the case believe that the opinion: 1) involves a new statute or a new amendment to an existing statute; 2) an issue of first impression; 3) the extension or restriction of a legal doctrine or existing precedent; 4) a reaffirmation of existing precedent that has not been addressed by the court in the last decade or so; or, 5) to alert the bar to a procedural infirmity that may impact on numerous other cases if not brought swiftly to the attention of practitioners (translation: the court decided a 2x4 was needed to get the attention of the bar).

My court also sits en banc on a regular basis and we usually publish any case that is decided by the full court, The rationale for that is that these cases usually tend to be the more significant ones and only the full court sitting en banc can overrule either existing precedent (something we do very rarely) or overrule the recent decision of a panel that the court as a whole believes to be in error (something we do rather more often).

If we have done our job properly, there is no need to ever cite an unpublished opinion because, theoretically at least, there should be a published opinion on the same point. I understand that because there are more unpublished opinions out there, you may be more likely to find one of those with a set of facts that are closer to your set of facts but that shoudn't matter. Having said that, I will admit that when I first came on my court, there turned out to be several important areas where there simply were no published opinions at all. In the time I have been on the court, that has pretty well been rectified but I still understand the frustration. The flip side from the perspective of my court is that an unpublished opinion is not circulated beyond the members of the panel while a published opinion is circulated to the full court for review and comment (although only the members of the panel have a vote on the outcome). Because published opinions go to every judge and undergo quite a few more drafts, they take a lot longer to get out and it just would not be practical to handle every opinion that way, especially when there is really nothing new to be said on that issue and we are just repeating something said in a long line of other cases.