Vol. 79 – The Use and Abuse of Unpublished Appellate Orders

by | Sep 9, 2025 | Newsletter | 0 comments

A legal note from Marshal Willick about why unpublished orders, as opposed to published Opinions, exist at all, and how they should and should not be used in arguing cases in any court.

I. WHY UNPUBLISHED ORDERS EXIST

Several lawyers have asked why unpublished orders exist in the modern world, commenting that they might have made sense when printing was a tedious and expensive task of putting printed pages into leather-clad bindings, but makes little sense in a world of bits, databases, and electronic retrieval.

The reason for the dichotomy between published Opinions and unpublished orders, however, goes much deeper than the cost of printing.

Back when I worked in the Central Legal Staff of the Nevada Supreme Court (1982-1984), the screening process pretty quickly put cases on separate tracks. Those with potential to become published Opinions were given a lot more concern about impact on development of the law and society in general, while “error correction” matters headed for unpublished decisions were focused on making a decision in a particular dispute.

That dichotomy apparently still exists. If anything, unpublished decisions are more “personal”—focused on these parties, their particular conflict, and the decision reached in their case, while cases that might become published opinions expressly contemplate the lasting impact of stare decisis; appellate judges do not want to have their own words thrown back at them in a later case.

The narrower focus on the specific parties and issue is one reason why so many unpublished cases include the notation “we do not recite the facts except as necessary to our decision.” The bigger picture of development of the law and social policy is not being addressed in such cases, and is typically not a consideration in the decision reached. Or as one appellate court put it, “Whatever doesn’t make any difference, doesn’t matter.” Miles v. Miles, 397 S.E.2d 790 (SC Ct. App. 1990).

II. HOW THE RULES SAY TO USE THEM

The Nevada Rules of Appellate Procedure seem clear on their face.  NRAP 36(c)(1) states in relevant part:

Form of Decision.  The Supreme Court and Court of Appeals decide cases by either published or unpublished disposition.

(1) A published disposition is an opinion designated for publication in the Nevada Reports. The Supreme Court or Court of Appeals will decide a case by published opinion if it:

(A) Presents an issue of first impression;

(B) Alters, modifies, or significantly clarifies a rule of law previously announced by either the Supreme Court or the Court of Appeals; or

(C) Involves an issue of public importance that has application beyond the parties.

(2) An unpublished disposition, while publicly available, does not establish mandatory precedent except in a subsequent stage of a case in which the unpublished disposition was entered, in a related case, or in any case for purposes of issue or claim preclusion or to establish law of the case.

(3) A party may cite for its persuasive value, if any, an unpublished disposition issued by the Supreme Court on or after January 1, 2016, or by the Court of Appeals on or after August 15, 2024. When citing such an unpublished disposition, the party must cite an electronic database, if available, and the docket number and date filed in the Supreme Court (with the notation “unpublished disposition”). A party citing such an unpublished disposition must serve a copy of it on any party not represented by counsel.

The “Internal Operating Procedures” of both the Court of Appeals and the Supreme Court courts repeat and rephrase the rule directive.  They can be found at: https://nvcourts.gov/__data/assets/pdf_file/0018/47061/COA_Internal_Operating_Procedures.pdf and https://nvcourts.gov/__data/assets/pdf_file/0018/11763/IOPs.11.21.24.pdf
Those procedures indicate that the judges attempt to decide whether the case warrants publication right after argument (if any) or decision:

Rule 9. Orders and Opinions. (a) Manner of Disposition. The court will decide how a case will be disposed of, either by order or opinion. An opinion may be prepared if the case presents a novel question of law, clarifies an important question of law, or sets new legal precedent. Although it is contemplated that most court decisions will be by order, the court “will decide a case by published opinion if it . . . [p]resents an issue of first impression”; “[a]lters, modifies, or significantly clarifies a rule of law previously announced by either the Supreme Court or the Court of Appeals”; or “[i]nvolves an issue of public importance that has application beyond the parties.” NRAP 36(c)(1). An opinion will not be mandatory when reversing a judgment that does not involve the above.

We recently received an order denying a request to publish one unpublished order that we thought would be useful to the Bar for general application; the Court disagreed.

In other words, unpublished dispositions need not be followed—by courts or anyone else—except in the case in which they are issued, although a party is allowed to bring them up if their reasoning is “persuasive” to another pending case, as long as they were issued after the two “magic dates” recited for the Nevada Supreme Court and Court of Appeals, respectively.

III. HOW SOME LAWYERS MISUSE THEM

There are some lawyers who cite unpublished cases, from whatever era, and simply demand that courts follow them, often not even mentioning that they were unpublished.

The lawyers doing so generally fall into two camps—the deliberately duplicitous who know the rules and are deliberately violating them hoping that their opponents and overworked courts will not notice; and the thundering dunderheads who have never read the rules, or forgot what they say, or did not understand them.  It is also possible, of course, for an honest mistake to be made.

Regardless of the cause, the error should be brought to the attention of the court; at least when the mis-citation was deliberate, fees for having to do so should be requested.

IV. HOW SOME JUDGES MISUSE THEM

One Reno attorney has claimed that some unnamed Washoe County judges have declared an intent to “follow” years-old unpublished cases from the Court of Appeals, on the basis that they are “annoyed that COA is issuing unpublished decisions and then appear to admonish them for not following those unpublished decisions.”

The attorney specifically cited one such older unpublished case, Pinto v. Guardado-Pinto, No. 84909-COA, Order of Affirmance (Unpublished Disposition, March 24, 2023), which the lawyer found problematic in current cases.  The MLAW Case summary of the case includes: “The district court found that Vanessa had presented no evidence that any student loan debt existed, but if it did exist it was Vanessa’s sole and separate debt because there was no evidence of a community purpose in the debt and Francis would not benefit from the education she received. . . .  The district court did not abuse its discretion when it determined that . . . Vanessa failed to provide any legal authority or cogent argument in support of her position that the student loans were incurred for community purposes . . . .”

Allegedly, some judges are using that holding to require lawyers to show “community purpose” in every debt brought before the court in a divorce.  If so, that directive is problematic for several reasons.

First, the underlying district court holding appears to have been actually based on a total lack of evidence that such a debt even existed, and if so was resolved as a form of “compelling reason for an unequal distribution” based on the entirety of facts in that case; it certainly did not overturn the statutory presumption that all assets and debts accrued in a marriage are presumed community per NRS 125.150.

Second is the relevant time frame for even persuasive authority to be derived from unpublished decisions.  The most recent change to the appellate rules states in NRAP 36(c)(3) that “A party may cite for its persuasive value, if any, an unpublished disposition issued by the Supreme Court on or after January 1, 2016, or by the Court of Appeals on or after August 15, 2024.”

Cases that may not even be directly cited do not establish precedent that should be “followed,” and certainly not to the effect of establishing informal changes to court rules or statutory provisions regarding community property and debt.

V. HOW THEY CAN BE USED EVEN WHEN NOT CITEABLE AS AUTHORITY

The timing rules do not mean that all unpublished authority prior to the two magic dates are totally useless.

While a single unpublished Court of Appeals case from before August 15, 2024, may not be directly cited as authority, there are some recurring situations that come up again and again and are always resolved the same way, and it seems relevant to advise district courts of such situations.

When we see one of those, we tend to advise the district court of it, with some notation like:  “There have been multiple orders of the Court of Appeals so holding, but in unpublished orders prior to August 15, 2024, not directly cite-able as authority.  There is no reason to believe any different result is appropriate in this case.”

So far, no court, district or appellate, has objected.  Obviously, anyone making such a representation should be honest, accurate, and correct.

VI. CITATION OF UNPUBLISHED CASES: A BRIEF COMMERCIAL MESSAGE

One Las Vegas lawyer wrote in asking for a reminder how to cite unpublished cases.

NRAP 36(c)(3) states in part that: “When citing such an unpublished disposition, the party must cite an electronic database, if available, and the docket number and date filed in the Supreme Court or Court of Appeals (with the notation “unpublished disposition”).”

For those using MLAW Case Summaries, which is such an “electronic database,” we have tried to include an appropriate citation, in correct form, of every case, published and unpublished, and include at the beginning of each summary the guidance applicable at the time of issuance as to whether and how the case can be cited.  But be careful—the rules have changed several times, so a party should always refer to the current court rules.

VII. CONCLUSIONS

Published opinions are intended to have an impact on cases and parties outside the case at issue, providing binding precedent as to the issues addressed, while unpublished decisions are usually intended to resolve individual disputes.

Still, the reasoning and arguments in unpublished decisions are often useful in other cases.  If issued after the two magic dates for the Nevada Supreme Court and Court of Appeals, they may be directly cited as “persuasive authority” for the issues addressed.  If there is a well-established pattern of similar decisions on a particular point of law, even if issued prior to those dates, that fact can be pointed out to a district court judge in a later case.

VIII. QUOTES OF THE ISSUE

“It is not wisdom but authority that makes a law.”  Thomas Hobbs (1588-1679).

“Appeal, v.t.  In law, to put the dice into the box for another throw.”  Ambrose Bierce, The Unabridged Devil’s Dictionary.

“The young man know the rules but the old man knows the exceptions.”  Oliver Wendell Holmes.

“It has been said that appellate judges watch from on high the legal battle fought below, and when the dust and smoke of the battle clears they come down out of the hills and shoot the wounded.”  Black v. State, 723 S.W.2d 674, 677 (Tx. Ct. App. 1986) (Onion, P.J., dissenting).
Marshal S. Willick
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