ContortionistUpdate (April 14, 2017): In our post below, we threw our full-throated support in favor of the abolition of so-called “unpublished” Minnesota appellate opinions.

Our main point is that the designation “unpublished” is a misnomer and does a disservice to Minnesota lawyers and their clients, relegating some percentage of state court appellate decisions (a sharply increasing percentage over the past 10 years as Minnesota Supreme Court Justice David Lillehaug has pointed out) to “unpublished,” more accurately known as “without precedential value” —  a down-graded and inferior status, without any articulated justification.

The unwritten justification for “unpublished opinions” is that publishing every decision is just too much work for our state Court of Appeals judges.

Many of us might not understand how abolishing this false and artificial designation, “unpublished,” by itself, results in more work for Court of Appeals judges.

We recently learned that there are different internal court review processes for published vs. unpublished decisions. There is more review by all Court of Appeals judges of “to be published” decisions than there is for “unpublished” decisions. This explains how eliminating the use of “unpublished” decisions would increase the court’s workload.

We still don’t buy it.

J.K. was a 3-and-a-half year old boy when, left at a daycare facility at Grand Casino Mille Lacs, he was badly beaten by a 9 year-old boy. How on earth could this happen at any properly run daycare facility? (Hint: it couldn’t.)

J.K. (or, more precisely, his mother as his parent and guardian) sued. The defendant admitted liability and the question of damages was submitted to a jury. A jury awarded J.K. $13+ million. The trial court judge (Hennepin Cty. District Court Judge Ivy Bernhardson) J.K.’s lawyers “made statements during trial that were improper, prejudicial, and led to an excessive verdict.” So the case went through a second trial and a verdict this time of $6,032,585.

J.K. was not allowed to seek punitive damages and recovered nothing for lost future earning capacity, decisions that his lawyers appealed.

The standard for punitive damages under Minnesota law is very difficult to meet. The pleading procedure is also tortuous. (See here and here.)

In J.K., J.K.’s lawyer:

alleges that [New Horizons] knew that the daycare facility was dangerous, failed to communicate to staff, provided inadequate staff training, improperly counted a front-desk employee when calculating the employee-to-child ratios, failed to properly use a log-in form to ensure supervision of children, improperly tied staff bonuses to reduced labor costs, and was understaffed on the day that appellant was assaulted. In addressing these allegations, the district court grouped them into three general categories: “[New Horizons] had notice that an incident similar to this one might occur; [New Horizons] failed to properly train its staff; and [New Horizons] failed to adequately staff the facility.”

The Court of Appeals held that the district court did not abuse its discretion in denying the motion to add a claim for punitive damages.

One Court of Appeals defense of “unpublished decisions” like this one in J.K. is that the Court of Appeals review was under an “abuse of discretion” standard, meaning that the Court was deferential to the decision by the trial court and would only reverse the decision if it was found to be an “abuse of discretion.” Because the appellate court applied this more deferential standard of review, the thinking goes, the precedential value of the decision is weaker than if the appellate court were making or clarifying a rule of law. But the more deferential standard, particularly in a case of this importance to the litigants, might suggest a GREATER importance of the most thorough appellate review available, not a lower importance.

Original post (December 21, 2016): In this month’s Bench & Bar of Minnesota, Minnesota Supreme Court Justice David L. Lillehaug and his former clerk, Nathan J. Ebnet, published a thoughtful and well-researched article entitled, “A Fresh Look at the Problem of Unpublished Opinions.”

The authors point out that the number of so-called “unpublished opinions” by the Minnesota Court of Appeals has sky-rocketed over the past decade to the point in 2015 when 92% of the Court of Appeals’ decisions were designated “unpublished.”

Justice Lillehaug and Mr. Ebnet point out that “an overwhelming majority of practitioners favor continued publication of all opinions,” (based on a 1986 survey) but they conclude with four proposals that stop short of advocating for the abolition of “unpublished opinions.” Instead, they suggest that the Minnesota Court of Appeals should issue fewer of them.

In my opinion, the authors do not go far enough. The “overwhelming majority of practitioners” were right. The very words, “unpublished opinion,” reflect an embarrassing legal contortion, an oxymoron. The doublespeak is particularly galling because so-called “unpublished opinions” play a part in our justice system, of course. The use of clear and precise language is an absolutely essential part of any claim to justice or fairness.

A description of doublespeak: “What is really important in the world of doublespeak is the ability to lie, whether knowingly or unconsciously, and to get away with it; and the ability to use lies and choose and shape facts selectively, blocking out those that don’t fit an agenda or program.”

“Unpublished opinions” are published in every sense of the word.

The point of “unpublished decisions” is that they are deemed “non-precedential.” In other words, aside from the litigants of the particular lawsuit that has been the subject of an “unpublished decision,” no other people may rely on the decision for any legal proposition.

To us, this is analogous to a winery that sells off its flawed grape harvests to other bottlers so as not to sully the vineyard’s own reputation with an inferior product.

How are Minnesotans supposed to feel when they are the litigants whose legal issues are disposed of and labeled with this down-graded status?

In response, we are told that the volume of cases requires some kind of streamlining and, let’s face it, the world does not hinge on every boundary line dispute, every slip and fall case, and every claim of wrongful discharge. Translation: our courts cannot afford to give your case as much attention as they give other cases (for reasons that the courts will never explain or have to justify) and, let’s face it, aside from you, who cares?

 

 

 

Leave a Reply

Your email address will not be published. Required fields are marked *