Left Column/point: Let There Be Cites
| Publication year | 2010 |
| Pages | 71 |
| Citation | Vol. 39 No. 11 Pg. 71 |
2010, November, Pg. 71. Left Column/Point: Let There Be Cites
November 2010
Vol. 39, No. 11 [Page 71]
Point/Counterpoint articles provide an open forum for the expression of ideas and address issues that are substantially related to the law, to the practice of law, or to lawyers (not matters of general interest). Any CBA member wishing to submit a Point/Counterpoint article should work with another CBA member to provide a companion article that argues for a significantly different conclusion. For further information and writing guidelines, to discuss topics in advance, or to get help finding someone to write an opposing viewpoint, contact Point/Counterpoint Coordinating Editor Fred Burtzos at fred.burtzos.gdz0@statefarm.com.
About the Authors
Peter J. Krumholz is a partner with Hale Westfall, LLP in Denver, where he practices appellate law and general litigation-(720) 904-6007, pkrumholz@halewestfall.com. Aaron Solomon is an associate with Hale Westfall, practicing in the areas of appellate law and commercial litigation-(720) 904-6030, asolomon@halewestfall.com.
Colorado Appellate Rule (C.A.R.) 35(f) provides that "[t]hose opinions designated for official publication shall be followed as precedent by the trial judges of the state of Colorado." Nothing in the rule prohibits the citation of unpublished opinions for their persuasive or other value, and no less a body than the Colorado Supreme Court has used them for this purpose.(fn1)
The Colorado Court of Appeals, on the other hand, has a policy specifically prohibiting the citation and distribution of unpublished opinions.(fn2) Pursuant to this policy, "citation of unpublished opinions is forbidden," with minor exceptions. The policy provides that unpublished opinions "are provided for private use and are not to be included in an electronic database or otherwise published."(fn3) The majority of the opinions issued by the Colorado Court of Appeals are unpublished,(fn4) and unpublished opinions are not made available on the court's website.
There is a healthy debate regarding whether opinions can and should be designated non-precedential.(fn5) Setting aside this question, there simply is no good reason for refusing to allow parties to cite unpublished decisions for whatever persuasive value they may hold.(fn6)
A Policy Steeped in Irony
The court of appeals' policy results in two ironies. First, the court prohibits citation of its own unpublished decisions, but no Colorado...
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