Case Law Research

In previous pages, we learned how cases are organized into various reporters. We also looked at the components of a case published in a reporter. However, not every single case is published in a reporter. Court rules decide which cases can be published and used as legal precedent. 

• All Supreme Court cases (both federal and state) are published 
• Some intermediate appellate court cases (both federal and state) are published. Some are not. 
• Some federal district court cases are published
• Most states, including Nevada, do not publish state trial court cases 

An unpublished case (both federal and state) has a notice at the top that says it is not for publication

• You will see such a notice whether you locate the case from the court's website or Westlaw/Lexis Advance
• Since an unpublished case does not have a reporter citation (e.g. 280 F.3d 1027), Westlaw and Lexis provide an unique identifier that serves as a substitute for a reporter citation. You can type 2016 WL 3316618 in the search box to retrieve the following unpublished 7th Circuit case on Westlaw.

I want to cite a 9th Circuit case decided a few days ago. Since it does NOT have the not-for-publication notice, I know it will be published in a reporter in near future. Can I cite this case in my brief?

• A recent published case that has yet to be added to a reporter is known as a slip opinion. You may cite a slip opinion in your brief in accordance with Bluebook Rule B10.1.4 and Rule 10.8.1(b). 

• A published case is a mandatory authority for the court and the lower courts in its jurisdiction
• An unpublished case is NOT a binding authority. In some cases, it can be used as a persuasive authority. Check your jurisdiction's court rules to see if you may cite an unpublished case in your brief
  • Federal Rules of Appellate Procedure Rule 32.1
  • Nevada Rules of Appellate Procedure Rule 36(c)(3)
• Do not cite an unpublished case UNLESS
  • There is no published case on point AND
  • Your jurisdiction's court rules allow you to cite it as a persuasive authority