The Unpublished Case and the 48-Hour Brief
Kevin is a paralegal at a small appellate practice in Morristown. The attorney asks him to draft a section of a brief arguing that a 2019 unpublished Appellate Division decision, A.D. No. A-1234-18T3, supports reversal of a summary judgment order. The attorney says, “It’s exactly on point; just cite it.” Kevin finds the case on the court’s website. It is marked “NOT FOR PUBLICATION.” He also finds a 2008 published case that seems contrary. He checks the 2008 case in a citator and sees a 2021 New Jersey Supreme Court opinion “overruled in part.” The brief is due in 48 hours. The client, an elderly homeowner, calls and asks Kevin to “tell me we’re going to win.” The attorney is in mediation.
1. May Kevin cite the 2019 unpublished Appellate Division decision as precedent? What does New Jersey law allow?
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No, not as precedent. Under R. 1:36-3, unpublished opinions are not binding and generally may not be cited in New Jersey courts. They may be used only for limited purposes such as res judicata, collateral estoppel, or law of the case, and even then the lawyer should be careful. A brief that relies on an unpublished decision as “exactly on point” is vulnerable to a motion to strike or a sanction. Kevin should tell the attorney the case is unpublished and cannot carry the argument. He should look for a published case or a statute, or use the unpublished decision only as persuasive background if the court permits. The attorney, not Kevin, should decide whether to cite it, but Kevin must flag the issue.
2. Kevin’s citator check shows the 2008 published case was overruled in part by a 2021 Supreme Court decision. How should he handle the research and the draft?
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He must not cite the overruled portion as good law. He should read the 2021 decision, identify exactly which holding was overruled, and update the brief. If the remaining part of the 2008 case still supports the argument, he may cite it with proper subsequent history, for example, “overruled in part on other grounds by ….” If the overruling destroys the argument, he should find another authority or tell the attorney the argument is weaker. Under RPC 3.3, a lawyer has a duty of candor to the court; citing overruled authority without disclosure can mislead the tribunal. Kevin should also check the statute and any later Appellate Division cases. He should give the attorney a short research memo explaining the problem before the 48-hour deadline.
3. The client calls and asks, “Tell me we’re going to win.” How should Kevin respond?
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Kevin should not promise a result. He can say: “I understand this is stressful. I can’t predict the outcome, and I can’t give legal advice. Your attorney is in mediation and will call you to discuss the case.” He may explain the process in general terms if the attorney has authorized it, but he should not evaluate the strength of the appeal or the likelihood of success. He should document the call and tell the attorney the client called. This is both an ethics and a client-communications issue: RPC 2.1 requires lawyers to exercise independent judgment and give candid advice, and RPC 5.3 requires the firm to supervise nonlawyer communications. False reassurance would harm the client and the firm.