groggyThis has always struck me as a little odd ... I never really saw the logic behind prohibiting attorneys from telling a court what it has decided in the past. One of the rationales offered for this practice is that sometimes the fact pattern in a case is so unique -- or is not clear from the opinion or the record -- that the court fears that the opinion will be cited as precedent in factually unrelated cases.
Anyhoo, the Supremes just approved new Federal Rule of Appellate Procedure 32.1, permitting attorneys to cite unpublished opinions in the federal circuit courts.
Two caveats, though, seem to drain this rule of incredible, earth-shaking significance.
First, the precedential value that courts are required to assign to unpublished opinions is still up in the air, but now, at least, we can cite these cases.
Second, the rule only pertains to unpublished opinions filed after Jan 1 of next year; citing of prior unpublished opinions is discretionary with the circuit.
However, when practicing before a tribunal such as the US Patent and Trademark Office, having the freedom to cite unpublished opinions when prosecuting a patent case might be a lot more valuable than having this ability in appellate procedure. Whether the Examiners pay any attention to case cites really seems to vary, but at least patent attorneys are able to cite authority for some legal assertions that we weren't able/permitted to before. In other words, Examiners aren't attorneys, but they do deal with legal documents, and the extra "oomph" value given to a statement by following it up with a cite to a case, can be pretty effective.
(source)
