Take a friendly lawyer to your local watering hole and ask him for a quick summary of annoying things that have occurred in the practice in the past 20 years. Chances are two strong subjects will come up. The first is the decision about two decades ago by the Superior Court and Commonwealth Court to issue non-precedential opinions. In common parlance the opinions are called “non-published”, but truth is that they are published and you can read them but the court adopted a rule that they had no precedential value and could not be cited as authority, even though they were dispositive in the case decided.
Last year the Superior Court disposed of roughly 8,000 cases, but less than 400 had a precedential opinion. Many of the other 7,600 decided some important legal matters, matters where precedent would be helpful, but the volume of decisions made the court nervous that it was issuing “precedent” where the three judges involved did not have the time or resources to consider the implications of a precedential opinion.
For the past several years the bar has been lobbying that the rule was too restrictive. Non-precedential cases should be worthy of citation and if the law was wrong or the precedent should be regarded as unique because of the facts, let the next team of lawyers fight over that when briefs and oral argument take place in their case. In other words, the case is not binding as a matter of law but it should be influential unless the subsequent appellate litigants showed it should not be.
The fight ended with a victory of sorts for the common law. The Supreme Court ordered that unpublished decisions decided as of May 1, 2019 may be cited in briefs and arguments but do not have the weight of stare decisis. Decisions before May remain verboten but at least the door of precedent has been unlocked for the future.
Oh, and that second complaint that is driving the common lawyer to drink. Client anonymity. Try standing in front of a mirror, let alone an appellate panel of judges and saying, “Your honors, K.M. versus J.M. is an unwarranted expansion of the ruling in K.K. versus K.L. and is in direct contravention of this Court’s en banc ruling in J.C. v. K.C. If K.M. is allowed to become law, J.C. is effectively overruled.” All of this because of an ersatz fear that the children of these folks will be scarred should their names appear in published law reports. Last year Facebook reported 2.3 billion users. There are only 7.7 billion people on the planet. May I suggest that judicial efforts to preserve anonymity in legal cases is but a speck in an ocean cluttered with people who can’t wait to share what they are up to and just how badly their ex-spouse or boyfriend treats the kids.