“Cite” No Longer a 4-Letter RE Unpublished Opinions (Washington)

Last week in Washington State GR 14.1 went effect.  I am not sure its the type of change in the law that will garner much press, but for attorneys (especially criminal defense attorneys) its a pretty big deal.  Why?  Let me explain.  Dating all the way back to my first year of law school, we were all taught it was a major no-no to cite an unpublished opinion.  Citing an unpublished opinion was unprofessional, unethical and a sanctionable act.

Since being sworn-in to practice law in November 2001 not once have I cited an unpublished opinion in all my brief writing.  And only ONCE have I had the pleasure of calling out opposing counsel for referencing such an opinion in a brief.

Well … all that changed last week (for the most part).  Unpublished opinions can now be cited for persuasive authority; however, there are restrictions on how far back you can go to cite it.  Regardless, GR 14.1 is a step in the right direction.  I lost count of how many times I worked on a motion to suppress evidence.  Trying to find a black-letter law case (relevant facts of the opinion are virtually indistinguishable from attorney’s case) to convince the court to suppress evidence but finding little in terms of supporting arguments; to-wit: an unpublished opinion.  Again, that appears to be something of the past.

Rejoice, the needle in the haystack just got bigger.  Or maybe the haystack got smaller.   If you get popped with dope in your car or rousted late at night for looking suspicious, criminal defense lawyers now have more prospective cases at their disposal to try and get you out of the jam you’re in.

Please find below, GR 14.1 in its entirety:

GR 14.1

(a) Washington Court of Appeals. Unpublished opinions of the Court of Appeals are those opinions not
published in the Washington Appellate Reports. Unpublished opinions of the Court of Appeals have no precedential
value and are not binding on any court. However, unpublished opinions of the Court of Appeals filed on or after
March 1, 2013, may be cited as nonbinding authorities, if identified as such by the citing party, and may be
accorded such persuasive value as the court deems appropriate.

(b) Other Jurisdictions. A party may cite as an authority an opinion designated “unpublished,” “not for
publication,” “non-precedential,” “not precedent,” or the like that has been issued by any court from a
jurisdiction other than Washington state, only if citation to that opinion is permitted under the law of the
jurisdiction of the issuing court.

(c) Citation of Unpublished Opinions in Subsequent Opinions. Washington appellate courts should not,
unless necessary for a reasoned decision, cite or discuss unpublished opinions in their opinions.

(d) Copies of Unpublished Opinions. The party citing an unpublished opinion from a jurisdiction other than
Washington shall file and serve a copy of the opinion as an appendix to the pleading in which the authority is
[Adopted effective September 1, 2007; amended effective September 1, 2016.]