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Experienced New England Attorneys

The Mischief of 1:28 Decisions


As every law student quickly learns, the appellate decisions of a particular jurisdiction are an important source of legal precedent.   We were all taught in law school to analyze these decisions and to find factual similarities and differences by comparing the reported case to our own.  In this way, we could either argue that the reported case was similar to our case and therefore controlled the outcome–if we liked that result–or that it was distinguishable from our case–and therefore a different rule of law should apply.

We also learned how to find pertinent law, originally through a complicated process of leafing through the many volumes that used to line the walls of every law office, and later by computer searches through legal databases like Westlaw and Lexis.  Not every decision was published in these case books; some cases were not deemed important enough to warrant publication.  These unreported decisions were supposed to be only for the benefit of the parties involved and were not supposed to be cited as binding precedent in other cases.  In Massachusetts, these were known as 1:28 decisions, named after the appellate rule that permitted the Appeals Court to decide that a case was a “no brainer” one way or the other–either there was “no substantial question of law presented,” or that there was a “clear error of law” involved.  A three-judge panel would write a short opinion that would go only to the parties, and the case would be decided on that basis.

As computer databases became more accessible, parties began to cite 1:28 decisions more frequently, even though they weren’t supposed to do so.  And eventually, the Appeals Court changed the rule prohibiting the citation of unpublished decisions, holding in Chace v. Curran, 71 Mass. App. Ct. 258 (2008), that unpublished decisions after February 25, 2008, could be cited “for their persuasive value but not as binding precedent.”

Unfortunately, although the unpublished decisions were in fact widely available–now even being published on the court’s website–the manner of their preparation and their rather cursory treatment of the issues remained the same.  These opinions are not circulated to the entire court before publication, and often contain only a brief statement of the underlying facts.  Thus, a 1:28 decision may represent only a minority view on the court, as it has not been reviewed and approved by any judges except the three who decided the case.  But more troubling, the facts as stated in the opinion may be so incomplete as to mislead readers about the basis for the decision.  Since these decisions were supposed to be issued only in clear-cut cases, the court often spends little time explaining the law and its application to the facts.  But without such an explanation, it may seem that the court “got it wrong” or that the law is not what it has been previously stated to be.

The danger is that a party unfamiliar with the underlying facts of a case will cite a 1:28 decision to a judge in a different case who, likewise unfamiliar with the facts, will misinterpret its scope and effect,  Even worse, a party familiar with the underlying facts through direct involvement in the case may take advantage of the court’s brevity to argue for an unintended application of the case.

I had originally been a strong supporter of the change in citation policy established by the Chace case.  But more recently, I’ve been concerned that these decisions have an enormous potential for misuse and mischief.  A couple of decisions this past week raise that ugly specter in a big way, and I’ll talk about them next week.

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