A judge's gavel on an open book in a library.

What is an Unpublished Case?

In our legal system, judicial decisions are an essential source of law. For that reason, one critical component of a case citation is where to find the case, meaning that cases are published rather than unpublished. For a long time, that meant the volume and page number of a case reporter, but in recent decades, most of us find cases online without pulling out the physical books.

Sample caption from an unpublished case

However, courts of appeal often issue decisions that are unpublished. Under C.A.R. 35(f), such unpublished cases must carry a notation on the title page stating: “Not published pursuant to C.A.R. 35(e)”. They lack the traditional citation for a good reason – unpublished cases are binding only on the parties to the specific case just decided instead of on future courts.

And since a decision not selected for publication is not binding precedent, the theory goes that there is no need for the rest of us to be able to find it or to cite it in such a way that others can cite it. So, unpublished cases do not have traditional case citations that tell us where they can be found. Given that most cases are not published, it’s somewhat crazy being prohibited from telling an appellate court how the majority of similar issues have been decided.

Standard for Publishing a Case

The Colorado Appellate Rules, C.A.R. 35(e) provides the following guidance to determine whether the court will publish a case:

“No court of appeals opinion shall be designated for official publication unless it satisfies one or more of the following standards:

(1)    the opinion establishes a new rule of law, or alters or modifies an existing rule, or applies an established rule to a novel fact situation;

(2)    the opinion involves a legal issue of continuing public interest;

(3)    the majority opinion, dissent, or special concurrence directs attention to the shortcomings of existing common law or inadequacies in statutes; or

(4)    the opinion resolves an apparent conflict of authority.”

Permissible to Cite Unpublished Cases

In a (published) decision, the Colorado Court of Appeals recognized that even unpublished cases have some value to lawyers and courts alike – at least to trial courts. The Patterson court involved a situation where the trial court considered an unpublished case cited by one of the litigants. On appeal, the other party argued that it was improper and violated the Court of Appeals policy.

While published cases are binding on lower courts, the Court recognized that the Colorado Supreme Court instructs that an unpublished decision has “no value as precedent.” However, the Patterson court interpreted this merely as prohibiting citing unpublished decisions in briefs to the appellate courts:

“C.A.R. 35(f) does not prohibit parties from citing an unpublished decision in a trial court, and the court of appeals’s policy merely addresses the use of unpublished opinions in briefs filed with, and in arguments presented to the court of appeals. Consequently, the trial court did not err when it considered the unpublished decision for whatever persuasive value it may have had.”

Patterson, ¶ 40.

While a trial court cannot treat unpublished cases as binding precedent, an unpublished decision is not invisible. After all, it is the collective wisdom of three appellate judges, and presumably, the unpublished decision has not been overturned by either a published decision or the state supreme court.

Instead, as with decisions from other states or a law review article, the trial judge has the discretion to treat the opinion as persuasive or to ignore it altogether:

“That being said, we do not mean to suggest that a trial court must consider such decisions at all. We simply acknowledge that unpublished does not mean confidential, and that our unpublished opinions are routinely shared among, for example, certain practice groups and specialty bars. As a result, it is not uncommon for trial courts to be asked to consider such an opinion. Because C.A.R. 35(e) does not endow unpublished opinions with precedential weight, however, a trial court remains free to disregard them entirely if it so chooses.”

Patterson, ¶ 41.

A lawyer is expected to know the law, which means published cases, so lawyers are not obligated to seek out unpublished cases. ¶ 42. But if we find these unpublished gems, we can use that advantage by citing them in our trial briefs. In other words, it’s extra credit for our clients.

Citing Decisions from Other States

Since the Patterson court analogized a case not selected for publication with the persuasive effect of out-of-state cases, to what extent may cases from non-Colorado courts be cited?

Out-of-State case Not Binding. This ought to be common sense, but Colorado Courts are not bound by decisions from other states. Wal-Mart, and especially given that different states may have different precedents, courts here may choose to follow or not follow such decisions.

Persuasive Effect. But why reinvent the wheel? If a sister court in another state has already considered an identical issue, and that state has a similarly-worded statute, then the out-of-state decision is at least a good starting point. And the judges from that other court may well have gotten it right.

So, when no Colorado case is squarely on point, thorough practitioners will often point to decisions from other states to support their position. That is entirely proper, and the Colorado Court of Appeals has held that: “Because our statutes are based on a model code, we may look to authority from other states interpreting their versions of the code for persuasive authority.” C.L.S., at 666.

And courts listen – not just trial judges, but in cases of first impression in Colorado, appellate decisions will frequently analyze the decisions from other states on the same issue, discussing any contradictions, then finally determining which of the precedents is most persuasive – and that then becomes the law of the land in Colorado.

How to Cite an Unpublished Case

The Bluebook (the primary guide for legal citation, not to be confused with Kelley Blue Book, a source of information about vehicle values) has a section on citing cases that were not selected for publication. For purposes of Colorado unpublished decisions, which are not included in Westlaw or other legal databases, the information needed in the cite is:

  • Case Name
  • Docket Number
  • Court
  • Date Decided

An example is In re: Marriage of Hamm (Colo.App. No. 20CA0613, Jul. 1, 2021) (Unpublished Decision).

How to Find Unpublished Cases

So, cases not selected for publication are still helpful, but the problem is they are not easy to find – after all, they are unpublished! All published cases from the Colorado Court of Appeals are provided on the court’s website, but unpublished cases are not and must be requested manually.

Even for lawyers, it’s difficult – per Court of Appeals policy, unpublished decisions are not available in the legal databases we use for legal research. So when we receive a copy, it may feel like we’re swapping bootlegs – we get them from an attorney involved in the case, or we go through the hassle of requesting it from the court. (And special thanks to Denver appellate attorney Sharlene Aitken who takes the time to dig up unpublished family law cases and share them with the family law bar).

We store copies of all cases referenced in this blog, the Colorado Family Law Guide, and the Military Divorce Guide on this site. So clicking on the hyperlink in the case name will pull up the PDF of the case, whether it is published or not.

PRACTICE TIP: Since an unpublished case cannot be easily found, if you cite one, you should provide a copy for the court and the other party.

Why do Published Cases Matter?

Most of the United States, including Colorado, has inherited the common law system from England, where the way courts have interpreted cases is binding for future cases. It is even enshrined in our law. C.R.S. 2-4-211 provides:

“The common law of England so far as the same is applicable and of a general nature, and all acts and statutes of the British parliament, made in aid of or to supply the defects of the common law prior to the fourth year of James the First, excepting the second section of the sixth chapter of forty-third Elizabeth, the eighth chapter of thirteenth Elizabeth, and the ninth chapter of thirty-seventh Henry the Eighth, and which are of a general nature, and not local to that kingdom, shall be the rule of decision, and shall be considered as of full force until repealed by legislative authority.”

So when the Colorado Supreme Court issues a decision, the “holding” is binding on trial courts and the Courts of Appeal. When the Colorado Court of Appeals issues a decision, it is binding on trial courts. The Supreme Court and other Court of Appeals panels may consider a court of appeals decision persuasive, but they are not obligated to follow it (which means, on occasion, we end up with conflicting authority from different panels on the Courts of Appeal).

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