Wednesday, September 12, 2012

Maryland Rule 1-104. Unreported opinions

(a) Not authority. An unreported opinion of the Court of Appeals or Court of Special Appeals is neither precedent within the rule of stare decisis nor persuasive authority.

(b) Citation. An unreported opinion of either Court may be cited in either Court for any purpose other than as precedent within the rule of stare decisis or as persuasive authority. In any other court, an unreported opinion of either Court may be cited only (1) when relevant under the doctrine of the law of the case, res judicata, or collateral estoppel, (2) in a criminal action or related proceeding involving the same defendant, or (3) in a disciplinary action involving the same respondent. A party who cites an unreported opinion shall attach a copy of it to the pleading, brief, or paper in which it is cited.

Restated in English, part (a) of this Rule says that only reported opinions of the appellate courts of Maryland matter.  

Part (b), on the other hand, is more difficult to parse.  Citing an unreported case is acceptable, unless you actually want to convince the judge that s/he should apply the unreported case to the facts at bar.  In other words, the Rule disallows the citation of an unreported opinion for the general reasons one cites an opinion.  The three reasons a case may be cited are all instances where the case is cited to show facts, not state the law.  

The most important practice point in this Rule is to attach a copy of the unreported case.  Actually, in general, attach as an appendix anything that's not reported that you cite, even if it is obvious and ubiquitous.  In the age of PACER and unreported opinions appearing in the electronic services this Rule might seem antiquated but please, attach it so the judge and your opponent have some clue as to what you are saying.

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