Old 1912 series of Lawyers' Reports Annotated

I missed writing about this at the time, but effective 2024, the Colorado Judicial Branch now includes unpublished Court of Appeals decisions (i.e. decisions not selected for publication) in its searchable database, Colorado Case Law Search, at research.coloradojudicial.gov.

Unpublished Cases are Persuasive Authority

When I wrote that it was permissible to cite unpublished decisions in trial courts as persuasive authority back in 2019, the chief obstacle was that it’s hard to cite a decision you can’t find. And since the Court of Appeals did not make its unpublished decisions available to the public, finding them was difficult without an “insider” with access to someone in the court system who shared them.

And since about 90% of the 1500 decisions issued annually by the Colorado Court of Appeals are unpublished, that’s a lot of persuasive case law effectively hidden by obscurity.

Unpublished Cases in Searchable Database

But no longer! If you search for a case on the court’s website, it will return both published and unpublished Court of Appeals decisions, as the Colorado judiciary implemented the Justice Gregory Hobbs Public Access to Case Law Act requirement to make appellate decisions available in a searchable database (although unpublished cases were not expressly referenced in the statute, the judiciary has included them).

To test this, once you have the results list, you can filter by both court (Supreme Court or Court of Appeals) and, for the Court of Appeals, by whether the decision was published or unpublished.

The law surrounding unpublished cases has not changed – they are not binding precedent on the trial courts, but may be cited solely for whatever persuasive authority the court accepts them for. This is anecdotal, but our firm has cited unpublished decisions in numerous cases, and I cannot recall a time when a district court judge refused to follow them on the grounds that they were unpublished. After all, though not legally binding, an unpublished decision still represents the considered wisdom of three appellate judges.

The Colorado Case Law Search website is fairly plain, but it works. It includes filtering and a decent search engine that supports Boolean queries. Check this Colorado Case Law Search Guide for more details. I understand that private legal databases such as Westlaw and Lexis are also incorporating unpublished Colorado cases.

The takeaway? The body of relevant, accessible case law has expanded tenfold, and lawyers need to be careful to distinguish between unpublished and published cases when citing them in their briefs.

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