by Matt Barr

Inside baseball

I'm at a loss here:

A little over two months ago, the Judicial Conference of the United States approved a proposed Federal Rule of Appellate Procedure that will allow attorneys to cite to non–precedential federal appellate rulings in all federal appellate courts. Currently, some federal appellate courts permit their non–precedential rulings to be cited in briefs, other federal appellate courts disfavor the practice but permit it when no on–point precedential decision exists, while a third group of federal appellate courts almost entirely prohibits any citation to their own non–precedential rulings.

We still have an adversarial system of justice, right? If someone wants to cite non-precedential rulings, let the other guy point out that they're non-precedential. I don't get why there would be a rule against it, since the other guy is perfectly capable of letting the court know the citation has that defect, and since the possibility of being embarrassed that way is likely to be as much a deterrent to the use of non-precedential rulings as a rule.

It's not like a rule that prohibits lawyers from lying. Their opponents shouldn't have the burden of discovering evidence of a factual assertion's falsehood -- a burden unlike looking up a cite and seeing it marked "non-precendential." And a lie is always a lie, while a non-precedential ruling could possibly be persuasive on some point or another -- or rather, with very similar facts, the reasoning set out in the ruling could be helpful, let's say. You're not disrespecting the court when you cite something without precendetial value the way you are if you lie, you're just telling the world you got nothin'.

Just curious.

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