Litigation is often compared to sports.  An imperfect analogy, but not a bad one.  There are usually at least two “teams” (the “plaintiff” or “prosecutor” and the “defendant”) and normally a winner and a loser.  The stakes for the players are often high.  In criminal cases, the defendant’s very liberty is at risk.  In the civil context, a monetary award can change the lives of both plaintiffs and defendants.  This is particularly true for plaintiffs who have suffered catastrophic injuries and can no longer work, or are facing enormous medical bills.  Because of the high stakes, both sides prepare zealously for their day in court. Trial is a winner-take-all proposition.  It is an unscripted and unpredictable match, filled with drama, shifting strategy and gamesmanship.  At the end of the trial, 12 random jurors (people with their own unique life experiences, education and inherent biases) will decide the winner and the loser.  The decision is a profound one, often altering the lives of those involved.

In the mist of the inherent unpredictability of litigation, litigants and lawyers take some small comfort in knowing the process is at least governed by rules.  And these “rules” are enforced by a judge, who plays a role very similar to a referee.  The judge makes sure both sides play a fair game.  So although litigants don’t know what the outcome of litigation will be, they at least know how the game is supposed to be played.  And that is important.  Because the thin line separating what is just from what is arbitrary is called predictability.

In large part, our entire legal system is set-up to establish predicable rules.  This isn’t news.  Our nation began with a bunch of colonist fed up with the arbitrary impositions of a monarch sitting on a throne across the Atlantic.  It wasn’t so much the ridiculous taxes that had colonist fuming, it was the fact that they were being imposed out of left field, with no rhyme or reason. How can anyone live that way?  With such uncertainty! We need rules because rules create predictability.  Predictability, in turn, gives us at least a sense of control and allows us to plan our tomorrows.  This isn’t so much a legal principle as it is an element of human nature.

But law is a reflection of human nature.  So for the system to work, the law needs to be predicable. The law does not always need to be right. It does need to be consistent.

Written judicial opinions are a linchpin of our nation’s legal system and are paramount to ensuring consistent, predictable rules.  One important point of a written opinion is to allow a judge to explain and justify his or her legal decision to specific parties in specific cases.  But more important, judicial opinions either create or follow precedent.   They either create new legal rules (for instance in cases where no rule has ever been established or where a prior rule is no longer viable), or they follow the legal rules that have been established in prior cases.  In situations where there is a well-established legal precedent that still works, judges are expected and normally required to follow those established rules.

But let’s be clear. The point of legal precedent is not to create the “best,” the “most practical” or the “most rational” rules.  That’s not it at all.  The purpose of legal precedent is to create consistent rules that are consistently applied. In a simplified sense, legal precedent serves a similar purpose to a rule book in sports. You might believe that a specific rule is not fair or illogical.  You might believe a specific rule is outdated and should be changed (happens all the time in professional sports).  But as long as everyone knows the rules ahead of time and those rules are followed during “the game,” there is at least a rough sense of justice.

But, imagine a situation where two professional sports teams square off in championship game.  Both teams put in a tremendous amount of work to get to this final game and made significant personal sacrifices. This “game,” this moment in time, will impact the future of these players. The outcome is not just about deciding the “winner” and the “loser.”  It is bigger than that.  There are financial stakes, careers and legacies on the line.  No doubt there will be unpredictable moments, key turning points in the match.  Both sides are hoping to play their best and catch a few lucky breaks along the way.  As they walk out onto the field to start the match, neither side knows exactly what is going to happen.  In fact they live every day in a world of stress and uncertainty.  The only comfort these players have is that they know how to play the game.  They may not know the outcome, but they know the rules. And that is something vital.  Crucial.  Because at its core, this “game,” inherently influenced by unpredictability and randomness, has a set of consistent principles that the players can rely upon.  They can plan around these principles! Without them there is only chaos.

The whistle blows, the game starts.  But then something funny happens.  It is not truly funny, it is bizarre and utterly frightening.  The referees who are supposed to be enforcing the rules are acting strangely, unpredictably.  In fact they are not following the rules at all.  They are making arbitrary decisions. They are not enforcing the written rules.  They are making calls that seem to make no sense.  Refusing to blow the whistle when it is clearly appropriate. The players are confused, tentative.  They are not sure what is happening and not sure what to do.  The game being played on the field is completely different than the game they have played throughout their career.  They look to the referees for answers, but get no explanation that makes sense. With no guidance, the players throw out their game plan, ignore the rule book and start doing whatever the referees will allow.

At some point the game ends.  One team is declared the winner.  But everyone understands it is not a just result because the game was not played according to the rules.  It was chaos.  The losing team is demoralized and angry. They were never given a fair shot.  The rug had been pulled out from under them by referees who decided, apparently on their own, to change the rules during the game.  They feel betrayed, but utterly powerless.  Although they are reluctant to say anything critical of the referees, even the winning team will concede that the game was strange and the rulings unpredictable.

The losing team really does not have much of an option.  They can only complain to the league’s front office.  They file a formal petition, a protest, and ask that the game be replayed.  They point out that the referees were acting erratically and did not follow the rules. In fact their protest points out specific examples of the referees’ mistakes and demonstrates beyond question that the mistakes cost them the game.  The response they get is cold comfort.  The league’s front office sends a letter to the losing team and acknowledges that things went a little sideways during the game.  The league concedes that the referees did not apply the rules as written and “yeah, okay, maybe some mistakes were made.”  But, from the league’s perspective, it’s no big deal.  It was only one game after all and no-one is perfect!  Although the referees did not follow the rules in this particular game, it’s not like they created a whole new rule book.  Next year, when the seasons starts again, the same old rule book that had always been in place will still be used. Next year the referees will be expected to follow the old rules – not the random decisions made by the referees in last season’s championship game.  Maybe the losing team got the short end of the stick in this single game, they lost unfairly.  But life is not always fair and in the scheme of things, all will be well.  We don’t need to “replay” the game, because it was only a minor, one-time hiccup.  The letter concludes by “reassuring” the losing team that if other referees in future games start applying different rules, if it becomes a consistent problem, the league will take formal action “to do something about it.”  Until then, let’s all just move along.

The losing team is clearly not satisfied with this response.  “Ok, great,” the team thinks, if it happens again the league will “do something about it.”  But “what about us,” they say?  “We lost a game we should have won!”  “Where is the justice for us?”  What is really frustrating though, is that everyone else in the league seems to be okay with the league’s explanation.  Everyone seems to be okay with the fact that the losing team was treated unfairly.  Justice for one particular team doesn’t matter, as long as unfair treatment does not become a systemic problem.  So long as it does not happen again next year . . .

This fictional scenario seems absurd, even outrageous.  It is an embellishment, to be sure.  But the truth is that our federal appellate courts actually operate in an analogous manner.  Today, federal courts of appeal decide most cases by issuing written opinions that are designated as “non-precedential.”  The idea of a “non-precedential” opinion is to expeditiously resolve specific disputes between litigants without creating precedent.  In fact, these non-precedential opinions contain a specific disclaimer that the decision is not precedential and “does not bind the court.”  In other words, the circuit courts are basically saying, “Okay, well we decided this particular case this particular way.  But, that doesn’t mean we won’t change our mind and do the opposite next time. Carry on and good luck.”

The fundamental problem with this approach are easy to see.  But before discussing the problems with non-precedential opinions, why do these things exist in the first place? Ultimately, non-precedential opinions became a thing because of volume.  Historically, federal appellate court decisions were published in bound books sometimes called “Reporters.” Still are in fact.  In the 1950s and 1960s the volume of appeals began to rise dramatically and, thus, so did the volume of written appellate decisions.  The consequence of this increase in appellate decision was that the official bound Reporter containing appellate court opinions was becoming too large and unwieldy.  The Judicial Conference noted this problem, and also recognized that a lot of the opinions being crammed into the Reporter were redundant and only addressed well-established legal rules.  Because these opinions were not creating new precedent or clarifying old precedent, they really were not all that important.  So why take up space in the Reporter with these run-of-the-mill opinions?

The second issue, also the result of an uptick in volume, was that the number of appellate court judges was not keeping pace with the number of appeals.  So as the number of appeals continued to grow, appellate judges were forced to churn out more and more opinions.  The strain on judicial time and resources started becoming a problem.

So the Judicial Conference came up with a simple solution that would reduce the size of the federal appellate Reporter and relieve the strain on appellate court judges.  Instead of the appellate courts deciding each appeal with a precedential opinion, why not create “non-precedential opinions”?  The idea being that for run-of-the-mill cases, those that do not involve new issues of law or novel issues of fact, why not let appellate court judges dispose of these cases quickly, without much effort? A lot of time and attention is spent on precedential judicial opinions because litigants rely on those decisions and lower court judges are required to follow them (trial court judges are “bound” by the appellate court decision). Precedential opinions have a ripple effect, they impact everyone, not just the parties involved in the specific lawsuit being decided by the appellate court.  But if we allow appellate judges to designate an opinion as “non-precedential,” we can do away with this ripple effect! Other litigants will not be allowed to rely on “non-precedential decisions” and lower courts will not be bound by them.  It’s like it never happened!  These non-precedential opinions don’t really exist!  And if they don’t really exist and won’t impact anyone else, appellate court judges do not need to spend as much time on them.  If they get it wrong, it’s no big deal because the damage will be limited. Plus, these “non-precedential opinions” will not be placed in the federal Reporter so they would not take up valuable space on the bookshelf.  Sounds like a great plan, right?

For their part, the various circuit courts of appeal were really digging this new “non-precedential” opinion deal.  In fact, non-precedential opinions became so popular that the in the past 10 years, the vast majority of all appellate court decisions are non-precedential.  From 2000 through 2008, for instance, approximately 85% of the Third Circuit’s decisions were non-precedential (the Third Circuit includes Pennsylvania, New Jersey and Delaware).

But this “non-precedential” opinion approach has its problems.  In fact it is a quintessential example of a plan looking really good on paper, but having really troubling implications.  One of the prime problems being that non-precedential opinions appear fundamentally unfair.  Another is that non-precedential opinions turn the entire concept of predictable rules on its head.

Let’s start with the issue of fairness.  First of all, allowing judges to “decide” which cases to designate as non-precedential (i.e. not worthy of publication or precedent) gives the unmistakable impression that appellate courts prejudge certain cases before even getting to the merits.  From the outside, it looks like appellate courts are imposing a subjective and opaque classification system. Deciding, without explanation, which cases are worthy enough for publication (and, some would argue, entitled to more time and attention) and which are not. From an optics perspective, this is problematic.  Although it is true that most appeals do not implicate broad social, political or financial concerns, that doesn’t mean they are insignificant.  You can bet that even a “run-of-the-mill” case is vitally important to the litigants involved.  For “the little guy,” when their appeal is dispatched with a short, terse opinion, it looks like the appellate court did not take their case seriously.  It feels like they didn’t get a fair shake.  Perception and all of that.

The length and quality of non-precedential opinions often make matters worse.  I have not done any research on this issue and I don’t have any empirical evidence, data or metrics supporting my position.  However, in my experience as a practicing trial lawyer (including my time as a federal law clerk), non-precedential opinions are often significantly shorter and contain less rigorous analysis than precedential decisions.  There are exceptions of course.  But, in general non-precedential opinions appear hastier. The product of a system valuing quantity over quality.  But is this what we want from our courts of appeal?

Fairness aside, it is difficult to square non-precedential opinions with a legal system that values consistency, predictability and, quite frankly, due process.  As I noted above, at the very top of every non-precedential opinion is a disclaimer that the opinion you are about to read is not binding precedent.  That allows the same circuit court to decide the same legal issues differently in different cases.  Applying the law differently to different people is inconsistent with bedrock constitutional principles, namely due process.  To be fair, our nation is dual sovereignty with 50 states and 13 federal circuits.  So we are bound to end up with inconsistent legal rulings across the federal circuits (called “Circuit splits”) from time to time. But when different circuits decide the same legal issue differently, when there is a Circuit Split, the Supreme Court usually steps in to resolve the inconsistency.

But this is different.  It’s different because non-precedential opinions allow and arguably encourage individual circuit courts to render inconsistent rulings. Simply by designating an opinion as non-precedential, a circuit court is explicitly reserving the right to change its mind next time it hears the same issue.  The practical impact of such a discretionary system is that it provides zero clarity to litigants.  It provides zero predictability.  Today the court of appeals is saying the law is X, tomorrow it is Y, and next week it is Z. It doesn’t matter though, because the opinions are “non-precedential!”  They don’t really count!!!!

Sounds questionable, right?  Sounds fundamentally flawed?  It is, and the inherent problems are exposed when a losing party asks the circuit court for a rehearing en banc.  Normally an appeal to a circuit court is heard and decided by a three judge panel.  On rare occasions, the entire court of appeals for a circuit will decide a case together.  So, for instance, in the Third Circuit there are presently 14 active judges.  Normally a case appealed to the Third Circuit is sent to a panel of 3 judges. This is done for efficiency reasons.  If all 14 judges had to decide every case not a lot of cases would be decided. When a three judge panel makes a decision, the losing party can ask for a rehearing en banc, meaning that all of the judges on the Third Circuit reconsider the case together.

An en banc hearing is extraordinarily rare and requests for a rehearing en banc are almost always denied.   The criteria for granting an en banc rehearing is very limited.  One of the primary factors the Third Circuit will consider in deciding to proceed with an en banc rehearing is whether the panel’s decision “involves a question of exceptional importance.”  Naturally, when a losing party requests an en banc hearing they typically argue that not only was the panel’s decision wrong, but the legal issue is so important it requires an en banc rehearing to fix the mistake.  And here is where the justification and rational for non-precedential opinions begin to break down.   If the winning party files a response to the request for a rehearing en banc, it often argues that the panel’s decision was correct AND even if it is wrong, the decision is not of “exceptional importance.”  Why not? Well if the panel’s decision was non-precedential (and it almost always is), the winning side usually argues that because it is a non-precedential opinion, other courts and other judges don’t need to follow it. In fact they can ignore the decision and “fix it” next time.  In other words, there is no ripple effect.  The panel’s decision may be wrong, but the only person impacted is the guy who lost.  That may be sad for him, it may be unfair, but life is not fair and his unfortunate loss is not “exceptionally important.”

The crazy thing is, this is a legitimate argument.

So what’s the solution?  The easy answer is to do away with non-precedential opinions altogether.  The historic justification for creating non-precedential opinions is dubious and at the very least outdated.  Most attorneys do their case research online these days so ongoing concerns about thick, unwieldy hard-copy Reporters are questionable. Nobody really uses them!  It is also fair to question the argument that non-precedential opinions can be drafted faster and more efficiently than precedential decisions. If the justification is that non-precedential opinions are reserved to routine decisions based on well-established law, well then why can’t these decisions be made just as quickly without assigning a “non-precedential” label?  Shouldn’t appellate judges make the same effort in all cases? Shouldn’t they stand by the quality and clarity of their work?

Look, I get it.  Some will argue there are still advantages to non-precedential opinions.  It’s faster (again I doubt this).  It’s more efficient!  Maybe.  If you value speed and efficiency in appellate review, maybe this is a good thing.  But if you value individual justice, if you value predictability, well, you may have some legitimate concerns.

James Goslee is a trial attorney in Philadelphia and can be reached at http://jamiegoslee.com/about/