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ARTICLE · 17 JULY 2025

A Brief Thought On Unpublished Opinions.

Markowitz Herbold PC
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I posted a LinkedIn poll yesterday asking about the percentage of published district court cases attorneys cite. I was surprised by the results: 75% of respondents cite published district court cases over 50% of the time.

United StatesLitigation, Mediation & Arbitration
Joseph Levy
Joseph Levy

I posted a LinkedIn poll yesterday asking about the percentage of published district court cases attorneys cite. I was surprised by the results: 75% of respondents cite published district court cases over 50% of the time. (I was the only respondent who cites published cases around 25% of the time, weirdly.) If I had wagered a guess before the poll, I would have assumed the vast majority of lawyers cite published district court opinions very infrequently.

I asked this question to get at a broader issue I've been pondering: why do we have unpublished opinions at all? It may have made sense when the opinions were actually unpublished, but now they're all available. And maybe it made sense before they could be cited, but now everyone cites unpublished cases, even though they aren't technically "precedential."

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