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This research guide discusses published and unpublished case decisions, and when and how these decisions can be cited in another case and used as authority. The guide covers unpublished cases in California and in the federal courts separately, because this subject is treated differently in California and federal courts.
Not all court decisions are ordered to be published in the court's official reporter. All United States Supreme Court and California Supreme Court decisions are published, but many appellate and lower court decisions are not published. For example, in 2017, about 8% of the majority opinions issued by the California Courts of Appeal were ordered published in official California reporters, according to a report from the Judicial Council of California. Additionally, according to statistics available on the U.S. Courts website, the majority of opinions issued by federal circuit courts are unpublished. The appellate courts have discretion regarding the publication of decisions, based on factors listed in the rules of court, such as whether the decision establishes a new rule of law or modifies an existing rule. See, for example, California Rule of Court 8.1105.
Although unpublished cases do not appear in the official reporters, some unpublished cases are reprinted in databases such as Westlaw and Lexis, and in some print reporters such as the Federal Appendix. This raises the question of when and how these unpublished cases can be cited as authority (used to prove a legal point) in another case. A published decision is generally a binding authority that must be followed by the court and the lower courts in its jurisdiction. Unpublished decisions are not binding authority. It is always best to cite to published decisions. You should cite an unpublished decision only when permissible under the applicable rules for that court, and only when there is no published case on point.
An unpublished case (state or federal) will have a notice at the top of the first page that states the case was not selected for publication. 