A little while ago, I promised to share my thoughts on the revised appellate rules that take effect on July 1. (Okay, so it was a more than month ago. Things have been busy.)
Let’s start at the beginning. Rule 5:1 has been amended to include two new substantive provisions:
- Certificate of Service. Rule 5:1(d) provides that, unless service or notice is otherwise specified in a Rule, any paper filed must include a certificate of service showing that the document has been transmitted to all counsel, and noting the date and manner of transmittal. If a word count is used, the certificate must also state the number of words.
- Citing Unpublished Opinions. Rule 5:1(f) specifies that lawyers may cite unpublished judicial dispositions, but only as a persuasive authority. If the document cited is not available in a publicly accessible electronic database, the party must file and serve the document along with the brief or motion in which it is cited.
These seem like perfectly reasonable–and helpful–changes. On the certificate of service point, there are few things more annoying than being retained as appellate counsel, and immediately having to call clerks, printers, and/or opposing counsel to reverse engineer a deadline because someone has certified service without noting the method.
As for citing unpublished opinions, that’s fine, as far as it goes. I doubt that the Court will give too much weight to an unpublished opinion (otherwise, it would be published), but I can also imagine situations where it might be helpful to cite one. I am a little curious about what qualifies as a “publicly accessible electronic database.” Fastcase is available to every member of the bar; does that count? Some law libraries have public access to Lexis or Westlaw, but I doubt that brings them within the scope of the rule. Absent further guidance, I suspect that you will have to err on the side of attaching opinions.