Judge Richard Arnold’s conversations with a “regular” lawyer about citation to “unpublished” opinions

arnold_richardI am pleased to post a guest piece by Elaine Mittleman  an experienced federal appellate practitioner. It has to do with the late Richard Arnold, one of the nation’s most highly respected judges, and his views about “unpublished” opinions as precedent. While the guest post is a thoughtful discussion of the substance of the issue, I am personally more interested in the two items of correspondence that Judge Arnold sent to Elaine. It shows Richard at his very best, taking the time to correspond with a “regular” lawyer about an issue that was important to the writer and recipient. From a historical perspective, Elaine’s post adds an important dimension to Richard’s biography and that is an especially good thing. Enjoy.

I have been thinking of the late Judge Richard S. Arnold of the Eighth Circuit.  A recent article about the 25th anniversary of PACER [Public Access to Court Electronic Records] caused me to reflect again on Judge Arnold’s important and path-breaking perspective on permitting the citation of unpublished opinions.

The United States Courts website article, “25 Years Later, PACER, Electronic Filing Continue to Change Courts,” December 9, 2013, explains that, for every Third Branch court, “all dockets, opinions, and case file documents can be accessed world-wide in real time, unless they are sealed or otherwise restricted for legal purposes.  This level of transparency and access to a legal system is unprecedented and unparalleled.”

Judge Arnold sent me an extremely thoughtful letter dated October 25, 1999 (see below), in response to a letter about a proposed American Bar Association resolution and the issue of unpublished opinions. He wrote, “(a)s to ‘unpublished’ opinions, I do not wish to say much, lest I become too emotional.  Whether an opinion is sent to West or other book publishers is important, but not crucially so.  But the assertion by any court that it has the right to decide a case differently from an identical case submitted the day before, merely because the earlier case was not ‘published,’ I find truly offensive.”

He admitted, “(l)et me warn you that my views are distinctly in a minority among judges.  In March of 1998 I attended my last meeting of chief circuit judges.  …  At that meeting we discussed proposals to make various changes in the system of published and unpublished opinions, including a proposal to acknowledge that all opinions have precedential value.  I believe I am correct in recalling that no one at the meeting favored the proposal except me.”

In a letter (see below) dated December 13, 2001, Judge Arnold enthusiastically commented to me, “I appreciate very much your sending me the information about the D.C. Circuit’s proposed rule change.  My response is one word: ‘Hooray!’”

The excellent blog, How Appealing, written by attorney Howard Bashman, included a series of “20 Questions” for selected judges.  Senior Judge Arnold responded to the 20 questions he was asked in a post (see responses to questions 12-16) dated November 3, 2003. In addressing questions about unpublished opinions, Judge Arnold emphasized that, “(i)t’s my opinion that judges who believe that unpublished opinions should be without precedential value are driven to that conclusion by the sheer volume of work. …  I hope and believe that the idea of non-precedential opinions of any kind will be consigned to the dust bin.” Judge Arnold also predicted that, “the rule against citation … and attempts to enforce it are doomed to fail. … (I)t is just not possible to put that much of a restraint on the availability of information.”

Rule 32.1 of the Federal Rules of Appellate Procedure provides that a court may not prohibit the citation of federal opinions that have been designated as unpublished or non-precedential.  This Rule applies to opinions issued on or after January 1, 2007. Local Rule 32.1A of the Eighth Circuit provides that unpublished opinions are not precedent.  Unpublished opinions issued on or after January 1, 2007, may be cited in accordance with Federal Rule of Appellate Procedure 32.1.

In a letter dated July 10, 2006, to the editor of The National Law Journal concerning unpublished opinions, I noted the passing of former Chief Judge Richard S. Arnold of the Eighth Circuit and former Chief Judge Edward R. Becker of the Third Circuit. Further, I emphasized that a major part of the legacy of those judges should include the appreciation, as acknowledged by the adoption of Fed. R. App. P. 32.1, that all opinions are important and may be cited.

Judge Ralph Adam Fine of the Wisconsin Court of Appeals commented in an email message dated July 25, 2006, on my letter to The National Law Journal, noting that he respectfully disagreed.  He explained that, “(t)he rule in our system, as it was in the federal system before the recent change, is that unpublished decisions of our court may not be cited as precedential or even ‘persuasive’ authority.  The main reason is that most of the routine cases (that is, those merely replicating existing law) are drafted, in the first instance, by staff attorneys or law clerks.  Although the result is correct, occasionally unfortunate language may seep into those decisions because the deciding judges do not read them as they would a decision circulated by a colleague that is destined for publication. As Judge Alex Kozinski has so thoughtfully and eloquently explained, appellate judges in the federal system give even less scrutiny to these run-of-the-mill decisions.”

There may be distinctions between federal and state courts that explain or justify differing rules for publishing and citing opinions.  The controversy about citation of unpublished decisions continues.  A 2013 article by attorneys at Manatt, Phelps & Phillips, LLP, titled, “To Cite or Not to Cite?  That is the Question,” discusses citation rules in California federal and state courts.  The attorneys argue that the availability online of unpublished opinions has made it more tempting to cite them, even if there is confusion about the propriety of doing so.  They offer a roadmap for California practitioners to determine whether a particular decision may be cited in federal and state courts in California.

Judge Arnold’s position that unpublished opinions can be cited has several practical advantages.  This simple practice does not require a roadmap and rejects any argument that it is improper to cite unpublished opinions.  Further, I believe that Judge Arnold did not accept that some decisions are “run-of-the-mill” – and possibly not even read by the deciding judges – while others deserve a higher level of judicial analysis and contemplation.  I think Judge Arnold appreciated that a court decision affects and is important to, at a minimum, the parties involved.  Thus, the attitude that many opinions can be treated as insignificant and not worthy of recognition can foster unfairness in the legal system.  The result may be that a significant number of persons seeking their day in court feel that they were denied that basic opportunity.

It may be questioned whether the terms published and precedential have lost their original meaning and impact.  If opinions are available online and throughout the nation to all who want to read them, they should be permitted to be cited in legal pleadings.  Judge Arnold’s prediction – that enforcement of rules against citation of unpublished opinions is doomed to fail – was exceedingly accurate.

Elaine Mittleman

Many thanks, Elaine!


Judge Richard S. Arnold Letter 10.25.99.redacted

Judge Richard S. Arnold Letter 12.13.01

Do whatever’s right

"“He was larger than life. He had a big smile and a big laugh and a gigantic heart,” his daughter said of Donald Ross." Photo credit: Bilde, Omaha-World Herald

““He was larger than life. He had a big smile and a big laugh and a gigantic heart,” his daughter said of Donald Ross.” Photo credit: Bilde, Omaha-World Herald

The following story appears in the Omaha-World Herald today about Judge Ross:

Donald Ross repeatedly did whatever was right.

At 21, he was a bombardier over Germany with the 306th Bomb Group of the 8th Air Force.

By 31, he had finished law school and served on the City Council in Lexington, Neb., and was its newly elected mayor.

Just a few months later, he was named Nebraska’s U.S. attorney.

Before he turned 50, he was appointed as a judge to the 8th U.S. Circuit Court of Appeals.

His law partners at the time gave him a judge’s robe that was embroidered inside with, “Do whatever is right.” He was known for saying that to colleagues and family.

When Ross retired from the 8th Circuit in 1987, he told those gathered about the robe’s inscription, noting: “I’ve spent the last 16½ years trying to live up to that.”

Ross, 91, died Wednesday at his Omaha home after a long illness, said daughter Joannie Wilson of Omaha.

“He was larger than life. He had a big smile and a big laugh and a gigantic heart,” she said.

His children and grandchildren called him “Peaches.”

Wilson described some of her father’s qualities: honesty, integrity, “his ability to take his emotion out of the situation and find what was right to do.”

He had four rules: Houses are brown. Cars are blue. Dinner at 6. Do whatever’s right.

“He was a very remarkable man,” Wilson said.

Ross entered the Army Air Corps in October 1942. He flew 46 missions as lead bombardier with the 306th Bomb Group.

The 306th was the first U.S. group to bomb Germany, inspiring the book, movie and television series “Twelve O’Clock High.” Ross twice was awarded the Distinguished Flying Cross and left military service as a major.

President Richard Nixon appointed Ross to the 8th Circuit in 1971. Ross replaced Harry Blackmun, who was named to the U.S. Supreme Court.

As a judge, Ross told The World-Herald in 1987, he regarded himself as “moderate in civil rights cases” but “very conservative” in criminal cases.

Ross received the Herbert Harley Award from the American Judicature Society, a national organization of lawyers and judges, for his “outstanding service in promoting the administration of justice.” That award is the top one given by the society.

He was born near Orleans, Neb., and grew up at Curtis, Neb., where he graduated from the Nebraska School of Agriculture High School.

Military service in World War II interrupted his education at the University of Nebraska. He graduated from the NU College of Law in 1948.

He practiced law for five years in Lexington before President Dwight D. Eisenhower appointed him as U.S. attorney for Nebraska. Ross, who moved to Omaha, served in the post from 1953 to 1956.

He returned to private practice and became vice president and general counsel for ConAgra.

Before his judicial career, Ross was active in state and national Republican politics. He was Republican National Committeeman for Nebraska from 1958 to 1970 and vice chairman of the Republican National Committee from 1965 to 1970.

Other survivors include his wife of 70 years, Janice Cook Ross of Omaha; daughters Jane Moody and Sharon Stephan, both of Lincoln, and Rebecca Ross of River Forest, Ill.; son Dean Ross of Omaha; 14 grandchildren; and 17 great-grandchildren.

The family will hold a private service in Omaha before Ross’ inurnment at Arlington National Cemetery. The court will plan a memorial service for him at a later date.

By Sue Story Truax / World-Herald staff writer, published by the Omaha-World Herald on Saturday, December 21, 2013. 


More on Judge Ross

Here is the Judge’s obituary:


Ross, Hon. Donald R.
Jun 8, 1922 – Dec 18, 2013
Judge Donald R. Ross, 91, passed away with his family at his side on December 18, 2013, following a long illness. He is survived by his loving wife of 70 years, Janice Cook Ross, and his five children and their families: Jane and Randy Moody of Lincoln, Ken and Sharon Stephan of Lincoln, Rebecca Ross and Dennis Linder of River Forest, IL, Joannie and Tom Wilson of Omaha and Dean and Sharon Ross of Omaha. He is also survived by 14 grandchildren and 17 great-grandchildren.
Judge Ross was born near Orleans, Nebraska, and attended high school at the Nebraska School of Agriculture in Curtis, graduating in 1939. He attended the University of Nebraska (1939-41) and the University of Nebraska College of Law (1946-48). In October 1942 he entered the Army Air Corps and flew 46 missions as the lead bombardier with the 306th Bomb Group from 1943-45. He was promoted to Major and was twice awarded the Distinguished Flying Cross.
He practiced law in Lexington, Nebraska, with Cook & Ross, and was elected mayor of Lexington in 1953. He was appointed by President Eisenhower as U.S. Attorney for Nebraska and served from 1953-56. He practiced law with Swarr, May, Royce, Smith, Andersen and Ross from 1956-71. He served as vice president and general counsel for ConAgra from 1969-71.
Prior to his appointment to the bench he was active in state and national Republican politics, serving as Republican National Committeeman for Nebraska from 1958-70 and as vice chairman of the Republican National Committee from 1965-70. In 1971, he was appointed by President Nixon to serve as U.S. Circuit Judge for the 8th Circuit; he served as an active and senior circuit judge for 31 years.
Judge Ross’ remains will be inurned at Arlington National Cemetery with full military honors. A MEMORIAL SERVICE will be planned by the court at a later date. A scholarship in Judge Ross’ honor has been established at the University of Nebraska College of Law; memorial gifts may be directed to it through the University of Nebraska Foundation, 1010 Lincoln Mall, Lincoln, NE 68508.

14151 Pacific St. 402-391-1664

Published in Omaha World-Herald from Dec. 19 to Dec. 20, 2013


Judge Donald R. Ross is gone

photo (19)In 1972, I graduated law school and began to serve as a law clerk to the Honorable Donald Roe Ross, a judge on the United States Court of Appeals for the Eighth Circuit. The judge became my mentor, and, later, my dear friend. Judge Ross died yesterday. He was 91 years of age.

I have previously written about the judge and his heroism during the Second World War. I will have far more to say in later posts about that valor and Don’s life as a lawyer and a judge.

But for now, I reprint the dedication to Judge Ross of the fourth issue of volume 66 of the Nebraska Law Review that I wrote in 1987 on the occasion of the judge taking senior status. I do so for a particular purpose. I will briefly elaborate upon that purpose in a moment. First, please do me the honor of reading what I wrote some 25 plus years ago:


When Don Ross personally negotiated the remaking of the Republican party after the Barry Goldwater debacle, he displayed the touchstone of all great American leaders and that was a spirit of, and deeply felt belief in, the practical* rather than the theoretical. Back then, being a loyal and highly respected Republican (and, later, a great judge) did not mean that you were an obsessive and compulsive ideologue. Oh, how I wish that were so now.


*See, e.g., Alexis De Tocqueville, Democracy In America, Book 1, Chapter 10 (1835) (“Why The Americans Are More Addicted To Practical Than To Theoretical Science”).

PS For those who knew the judge and wonder about arrangements, the Omaha World-Herald recognizes today, on the obituary page, Don’s passing. Additionally, a “complete notice [will be provided] later,” according to the John A. Gentleman Mortuaries.

When a guilty verdict is a good thing for a defense lawyer

While I think jury trials are horribly inefficient in this era of efficiency above all else, I respect the common sense of jurors. In fact, I am in awe of the collective wisdom of jurors. But, sometimes, things go awry.

Recently, a jury returned a verdict of guilty in a manslaughter case where a man was charged with killing his wife. The verdict was guilty, but, for the defense, that was a good thing.  A reporter was there to catch and release this fascinating story for the rest of us:

First they said “guilty.” Then, in a stunning reversal, a state Superior Court jury acquitted Robert Bell of all charges in the December 2012 shooting of his wife.

Just after 12:35 p.m. Tuesday, jury forewoman Jody Bayer announced they had found the 64-year-old defendant guilty of first-degree manslaughter for killing Svetlana Bell at their New Fairfield home. But that verdict then set off a series of twists and turns that had courtroom observers on the edge of their seats, asking each other what was happening.

While jurors were being individually polled, one asked a question about the process of delivering a verdict in a case where the killing itself was never in dispute and the defense was based on a claim of self-defense. It soon became clear that the jurors were uncertain if they had made a mistake.

Judge Robin Pavia sent them back into the jury room, and following an exchange of notes with them and conferences with attorneys, said she was not accepting the guilty finding. She then directed jurors to resume deliberations.

They returned 10 minutes later, about an hour after their guilty finding, and pronounced Bell not guilty.

John Pirro, Jury convicts, then acquits Bell in manslaughter casestamfordadvocate.com (December 3, 2013).

In short, the jury believed that they first had to find the defendant guilty of the killing before they could find him not guilty by reason of self-defense. That is not entirely crazy.

The defense lawyer said it best. “‘To have your heart fall with them announcing a verdict of guilty, and then to realize it was simply they had not fully announced their verdict … It was kind of a death by degrees, and then elation,’ defense attorney John Gulash said afterward.”

There is an important lesson or two to be learned from this case for trial lawyers and trial judges alike. For you experienced practitioners, tell us what those lessons might be.


PS Thanks to Gary Hochman for the tip.

Are President Obama and Raul Castro really gay?

A reader wrote: “I enjoyed your post on the Oxford comma. Out of respect for traditional grammar rules and to avoid ambiguity, I’m a fan of it. Here’s an example of why.” Be sure to view the screen shot and then the accompanying Twitter feed from Sky News.


PS Thanks to the reader, Richard Rothblatt, for the great tip. Also, kudos to Mark Liberman, a professor of linguistics at the University of Pennsylvania and director of the Linguistics Data Consortium.

The 100th Meridian

This work is licensed under the Creative Commons Attribution-ShareAlike 3.0 License.

This work is licensed under the Creative Commons Attribution-ShareAlike 3.0 License.

I practiced law for 13 years about 15 miles from the 100th Meridian (the center of the United States) and the spot pictured above. I once got a ticket for going 90 mph at 6:00 am as I raced through Cozad trying to make to it to North Platte on Highway 30.

The New York Times Magazine has run a stunning pictorial of this land entitled: This Is What It Looks Like at the Center of America. See it here. I particularly love the photo numbered 14 and the photo numbered 17. See the accompanying article here.

Remembering the haughty, Harvard educated, federal judge who I once heard say, without any trace of irony, that Washington, D.C., is the center of the universe, I am reminded how parochial elites can be. These photos stand in stark contrast to that point of view and depict the real center, both emotionally and otherwise.


Guest Post on Judge K and Brady with a fascinating twist

One of the joys of this blog is that I frequently receive views that are beautifully expressed and very thoughtful. One of the readers of this blog, with a very interesting background herself, sent me the following, and graciously allowed me to post it. I particularly urge you to read the article linked at the end of this guest post for a fascinating twist.

Dear Judge Kopf,

I should thank you for giving me an interesting topic to occupy my insomniacal hours. I read with great interest Judge Kozinski’s dissent from denial of rehearing en banc. He is, as you say, a most interesting man, and the salacious facts of the case at hand are TV-movie-worthy. And, to be sure, the question of prosecutorial misconduct is one that has been ever-present in my thoughts for the years I have spent as a county and federal public defender.

[Your question about whether Judge K is right bears plenty of thoughtful (and limey disparate) responses; indeed, in my home state of SC, we have a mini maelstrom of controversy brewing because one of our Supreme Court justices recently excoriated prosecutors for what he called their widespread misconduct…in a speech before the state prosecutor’s convention. Now, the prosecutors, who are accustomed to being able to shout “off with their heads” in the press regularly about the supposed thugs and reprobates they are charged with protecting the rest of us from, have gone positively hats mad in response, and are seeking to have the justice (of a five-person court of last resort) recused from all criminal cases. That will happen on a cold day in hell, I figure, but South Carolina’s legislatively elected court could certainly be altered in the future depending on the political power the prosecutors might bring to bear. The whole affair reflects well on no one, so far as I can tell. But that’s not why I’m writing. I have no idea whether Judge K is right. In my experience, prosecutorial misconduct is far more often of the nonfeasance than malfeasance variety, and it is often only long after the fact, if ever, that such sins of omission are discovered. I suppose I will need to hang around for another few years to see if my hunches about a very small number of cops and prosecutors are borne out.]

Before I could think through the wisdom of a lifelong pinko liberal googling anything including the term “ricin” after 2AM on a Friday night, I was knee-deep in searches for more of the backstory here. This was unwise not only on the snooping government overlord front (terrain I blithely traipse across with a frequency that my husband finds distressing—curiosity kills), but also on the very poor cure for insomnia front.

The most fascinating of the things I came across was a literary essay published in 2009 in a web-only magazine. The author is the daughter of the nursery owner who sold the few bucks worth of castor beans to the defendant in Judge K’s order. She attended the entire trial, and her observations and elliptical commentary (it is clear by now that I favor elliptical commentary, I suppose) on the trial and on the timing of the case (discovered before 9/11, but prosecuted after passage of the PATRIOT act) and on the strategic decisions made by the defense and on the intersections of the case with her family are fascinating. Her piece is here.

Cameron Blazer

RGK PS For background on Ms. Blazer, see here.

Some things are more important than others

While I was in Sioux City, Lisa, Petra and Milan arrived in Lincoln from China for a short visit. Dad, Karel, will meet up with them in Canada in a few days and the family will celebrate X-Mas in the north country.  Yesterday, I tagged along while the children visited Morrill Hall on the campus of the University of Nebraska.

Morrill Hall is a wonder. Among many other treasurers, the world’s largest exhibited mammoth skeleton, a 14-foot male, can be found on display in Morrill Hall. It is from the Late Pleistocene Era. The giant mammoth was found in 1922, near where I used to practice law, in Lincoln County, Nebraska, by a rancher and his wife. They turned the fossil over to the Museum for exhibit and research.

We had a great time. Photos of our adventure follow.

Out front:


Scary good (particularly when your four-year old teeth look a lot like the dinosaur’s teeth):


There are real mountain lions in Nebraska (and some times they eat children from China):



My take on Brady violations in federal court

Image credit: Pam's Clipart pursuant to license per site.

Image credit: Pam’s Clipart pursuant to license.

My earlier post about Chief Judge Kozinsky and Brady violations generated a fair amount of comment. I will use this post to give my two cents worth about Brady in the federal court.

If Chief Judge K. believes there is an epidemic of Brady violations, I cannot dispute his assertion because I don’t have his much broader perspective as Chief Judge of the Ninth Circuit. As a district judge, and one who relies on our tough and excellent magistrate judges to handle pretrial motion practice, I see only a tiny slice of the issue. Moreover, where I hang out, the federal prosecutors are, by and large, quite careful, or so it seems to me. The disease that Chief Judge K. worries about does not seem to present, at least in epidemic proportions, in the District of Nebraska where we typically rank in the top 10 when it comes to criminal cases per judge.

But, I will say this:

Back when I was a Magistrate Judge between 1987 and 1992, many federal prosecutors followed an “open file” policy. That is, the defense lawyer got access to the complete investigative file–everything the prosecutor had–except for legal research and the prosecutor’s outgoing correspondence. The defense lawyer was able to copy whatever the lawyer wanted. That seems sensible to me. Indeed, I would be inclined to change the Federal Rules of Criminal Procedure to require prosecutors to open their investigative files. Oh, sure, there are problems with witness intimidation or retaliation in prison and that sort of stuff. But, those problems can be dealt with. More importantly, I want snitches scared–fear serves as an antidote to lies and exaggeration (think drug quantity, for example).

So, if I were the King (and I should be), prosecutors would be required to show their investigative files to defense lawyers and allow those lawyers to copy whatever they wanted. A rule requiring complete transparency would go a long away to disinfecting the germs that Chief Judge K. sees as the genesis of the plague. But, what the hell do I know?


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