Depending on whether you are in state or federal court, and whether you’re at the trial level or on appeal, you may be able to cite an unpublished case as precedent in your brief and memoranda. As the name suggests, “unpublished” or “unreported” decisions are judicial opinions that have not been published in any official case reporter.
What if there is no Lexis/Westlaw Identifier?
Because these decisions aren’t published with a traditional citation of “Volume” “Reporter” “Page number” (e.g. 138 F.3d 674), Westlaw and Lexis (“Wexis”) assign database identifiers to unreported decisions that courts recognize, and which have garnered their own mention in the Blue Book. E.g., Hoffmann-La Roche Inc. v. Cobalt Pharm. Inc., Nos. 07-4539, 07–4540, 08–4054, 2010 WL 4687839 (D.N.J. Nov. 10, 2010).
Good news! You do not have to use a Wexis identifier to cite an unpublished case. Here are some guidelines you can use to cite unpublished cases from sources other than Wexis, including Ravel.
First and foremost, check your court’s rules on citing unpublished opinions to determine if you may cite an unpublished opinion as precedent. Next, check your specific court’s local rules to determine whether any local rule governs how to cite opinions from electronic databases. For example, the United States Court for the Northern District of California Local Rule 3.4(d)(3)-(5) provides that if a case is not yet available in the preferred reporter, but can be found in an electronic database, the citation must indicate “the database, year and any screen or page numbers, if assigned.”
What does the Blue Book say?
The Blue Book provides guidelines for citing cases from electronic databases other than Wexis. Rule 18 states that “[w]hen a case is unreported but available on a widely used electronic database, it may be cited to that database. Provide the case name, docket number, database identifier, court name, and full date of the most recent major disposition. . . . Citations to cases that have not been assigned unique database identifiers should include all relevant information, such as the specific collection within the database in which the case can be found . . . .”
For instance, if you located Hoffman-La Roche, Inc., the case from the example above, on Ravel you could Blue Book cite it as in the following example:
Hoffmann-La Roche Inc. v. Cobalt Pharm. Inc., Nos. 07-4539, 07–4540, 08–4054, ¶ 14 (D.N.J. Nov. 10, 2010) (Ravel Law, United States District Court, D.N.J. Case Law) (“The party asserting invalidity bears the burden of establishing it.”).
Am I Missing Anything?
Don’t forget to include the proper pincite, if applicable. To cite an unpublished case found in an electronic database, the Blue Book explains that “[s]creen or page numbers, if assigned, should be preceded by an asterisk; paragraph numbers, if assigned, should be preceded by a paragraph symbol.”
Now that you’ve been freed from the yoke of Wexis identifiers, you’re ready to go forth and (carefully) cite those unreported cases! In the meantime, you may want to check out my blog post on 5 tips for answering a difficult legal research question.