Attorneys should be careful about citing unpublished decisions to support their legal arguments. Overzealous advocacy of citing such decisions as an authority is frowned upon by the reviewing tribunals.
The following statement is noted on all unpublished decisions released for circulation in New Jersey.
“NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not “constitute precedent or be binding upon any court.” Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. Superior Court of New Jersey, Appellate Division.”
“No unpublished opinion shall constitute precedent or be binding upon any court. Except for appellate opinions not approved for publication that have been reported in an authorized administrative law reporter, and except to the extent required by res judicata, collateral estoppel, the single controversy doctrine, or any other similar principle of law, no unpublished opinion shall be cited by any court. No unpublished opinion shall be cited to any court by counsel unless the court and all other parties are served with a copy of the opinion and of all contrary unpublished opinions known to counsel.”
In a recent case before the Appellate Division, the Respondent-Employer advocated that an employee was injured not within the course of employment and cited 3 unreported cases. The matter was reversed on appeal and held compensable. In its decision, the NJ Appellate Court noted, “Unpublished opinions have no precedential value, are not binding upon any court, and shall not be cited by any court. R. 1:36-3.”
While unpublished decisions are a great resource for academic hypothetical discussions, attorneys should focus on primary authorities such as published decisions and statutory authority to support their arguments.
Recommended Citation: Gelman, Jon L., A Cautionary Note on Citing Unpublished Decisions, Workers' Compensation Blog, October 13, 2022), https://workers-compensation.blogspot.com/2022/10/a-cautionary-note-on-citing-unpublished.html
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Jon L. Gelman of Wayne, NJ, is the author of NJ Workers’ Compensation Law (Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (Thomson-Reuters). For over five decades, the Law Offices of Jon L Gelman 1.973.696.7900 firstname.lastname@example.org have represented injured workers and their families who have suffered occupational accidents and illnesses.
Blog: Workers ' Compensation
LinkedIn Group: Injured Workers Law & Advocacy Group
Author: "Workers' Compensation Law" Thomson-Reuters