SPRINGFIELD – Supreme Court Justices loosened the tongues of lawyers on Nov. 20, by letting them quote appellate court orders that don’t set binding precedent.
The Justices erased a rule that prohibits citation of those orders and replaced it with a rule that they “may be cited for persuasive purposes.”
The rule will take effect Jan. 1.
The Court enacted the provision in 1994.
“At that time, there was an avalanche of opinions from our appellate court and many were simply too long,” the current Justices wrote.
“In 1994, electronic legal research databases were in their relative infant stages, and the majority of legal research was done using books.”
They wrote that book-based research has rapidly diminished, and with it the justification for the rule has diminished.
They wrote that searchable databases typically include both published opinions that set precedent and orders that resolve cases without setting precedent.
“The amended rule makes these cases available to litigants for persuasion without expanding the body of binding precedent,” they wrote.
The distinction between published opinions and written orders won’t change.
Appellate courts publish an opinion when they establish a rule of law and when they modify, explain, or criticize a rule of law.
They also publish an opinion when they resolve, create, or avoid an apparent conflict of authority with another appellate court.
In a case that doesn’t qualify for a published opinion, an appellate court states facts, issues, contentions, and reasons for its decision.
The Court in 1994 stated, “Disposition by order rather than by opinion reflects the precedential value of a case, not necessarily its merits.”