The following article, which originally appeared in the Arkansas Real Estate Review of the Arkansas Bar Association Real Estate Section, will be of interest to those who practice appellate law in Arkansas. In the article, Professor Lynn Foster, Arkansas Bar Foundation Professor of Law at the UALR William H. Bowen School of Law, writes that West is no longer publishing all reported decisions of the Arkansas Court of Appeals or Arkansas Supreme Court in the South Western Reporter (recall that all Arkansas Court of Appeals and Arkansas Supreme Court decisions are now reported pursuant to Rule 5-2). In addition, a rather confusing header that appears at the top of these cases in Westlaw gives the impression that the cases have no precedential value, when, in fact, they do. The fact that decisions of the Arkansas Court of Appeals and Arkansas Supreme Court are not being published in the South Western Reporter is yet another reason that we believe using electronic research databases is the better method of researching these days (we use Westlaw at Cullen & Co.). The full text of the article is available after the jump (click the “More” link).
Incidentally, I highly recommend that you join the Real Estate Section of the Arkansas Bar Association, if for no other reason than to receive the Arkansas Real Estate Review.
(This was originally published in the Arkansas Real Estate Review, an electronic publication available to members of the Real Estate Section of the Arkansas Bar Association, published twice a year, and is reprinted by permission.)
WHO DECIDES WHAT IS PRECEDENT?
By Lynn Foster
In June 2009, the Supreme Court revised its Rule 5-2 and did away with “unpublished” appellate opinions in Arkansas. Since then, all appellate opinions, including all those of the Court Appeals, are published, and all may be cited as precedent, according to Rule 5-2. If you read opinions on the court’s official website, you will see that no opinions are labeled “not designated for publication,” as some Court of Appeals decisions used to be.
However, when searching for cases on Westlaw, I noticed that some Court of Appeals decisions published after July 1 had a strange header: NOTICE: THIS DECISION WILL NOT APPEAR IN THE SOUTHWESTERN REPORTER. SEE REVISED SUPREME COURT RULE 5-2 FOR THE PRECEDENTIAL VALUE OF OPINIONS. This header puzzled me. All appellate decisions are now precedent, according to the Supreme Court. This header was similar to the old one declaring that a particular decision was not precedent and was not designated for publication.
I called Susan Williams, the Reporter of Decisions for the Arkansas Supreme Court and Court of Appeals, and learned some interesting and disturbing things. First, even though the Supreme Court has said that all decisions after July 1 are precedent, the editors at West Publishing are choosing which to include in the South Western Reporter. Not all are included. If the above header appears above a decision, it will not appear in the print reporter, even though it is perfectly good precedent. The opinions will be on Westlaw, but NOT in the print reporter.
Second, the West editors are breaking another tradition, this one going back to the beginning of the Reporter System. They are also leaving some Arkansas Supreme Court opinions out of the South Western Reporter, running the same header at the top. West is regularly omitting a few Supreme Court opinions each month from the South Western Reporter. Here is a list of those omitted in 2010, with the authors’ names:
- Gunter, State v. Parker, 2010 Ark. 173
- Brown, Davis v. Hobbs, 2010 Ark. 168
- Danielson, Doe v. Weiss, 2010 Ark. 150
- Hannah, Butcher v. Beatty, 2010 Ark. 130
- Hannah, Clark v. Johnson, 2010 Ark. 114
- Danielson, Miller v. Enders, 2010 Ark. 92
- Gunter, McJames v. State, 2010 Ark. 74
- Danielson, Johnson v. State, 2010 Ark. 63 (this decision answered a certified question)
- Corbin, Hood v. State, 2010 Ark. 62 (this decision answered a certified question)
- Danielson, Hagen v. State, 2010 Ark. 54 (this decision answered a certified question)
- Gunter, Loveless v. Agee, 2010 Ark. 53
- Hannah, Red v. U.S. Bank, 2010 Ark. 51
- Brown, Hardy v. Hardy, 2010 Ark. 41
- Corbin, Carr v. Nance, 2010 Ark. 25
- Hannah, Jenkins v. Ligon, 2010 Ark. 24
Third, West decisions, whether online or in print, no longer carry the names of the attorneys and firms who represented the parties on appeal. Mark Hodge discovered from speaking to court staff that whereas West used to send someone to check the courts’ dockets for the attorney names, that is no longer done. Although you can search using an attorney field on Westlaw, it will no longer call up current opinions because the attorney name is not included. If the briefs are available on Westlaw, you can check the briefs for the names of counsel, but briefs are not always available. This keeps the “attorney” field empty and makes searching by attorney useless. I have heard that West plans to include attorney names in the near future. I hope this is true.
On the other hand, Lexis does contain the names of counsel for many, if not most, opinions, and does not decide on its own that some opinions have less precedential value than others.
In my opinion, the notice should go. To the infrequent researcher, it suggests that the opinion is inferior in some way, which it is not, by decree of the Supreme Court. Some may even confuse the notice with the one under the old rule that stated that the opinion was designated unpublished by the court. Perhaps the court could request West to remove these notices. My guess is that few attorneys subscribe to the South Western Reporter in print form, these days.
I’m happy to report that in this issue of the Review, we have begun to include names of counsel when available. We will also indicate if an opinion will not appear in the South Western Reporter by not including “___ S.W.3d ___” after the official citation.
I suggest the following notice to be published at the head of decisions that West has chosen to leave out of the South Western Reporter: NOTICE: ALTHOUGH THIS OFFICIAL DECISION HAS FULL VALUE AS PRECEDENT AND MAY BE CITED, THE WEST EDITORS HAVE CHOSEN NOT TO INCLUDE IT IN THE SOUTH WESTERN REPORTER.