If I appeal my case, will an opinion be published by the court?
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UPDATED: Jul 16, 2021
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Appealing a case in the federal appeals court does not necessarily mean that you will have a published opinion. Some circuits do not publish all opinions; others have special rules about relying on “do not publish” decisions as precedent. In fact, there may not even be an opinion because the Court of Appeals sometimes just “affirms on the opinion below” and thus does not feel the need to write one.
West Publishing has been the exclusive publisher of federal appeals decisions since the establishment of the courts. The appeals decisions are published in the “Federal Reporter” series.
Does the court have discretion to publish?
Yes. There are many cases that come through the appeals court that are too sensitive to publish. For instance, cases involving minors are traditionally never published. In addition, some attorneys will file a motion to seal the record. This means that all paperwork dealing with the case will be placed in a confidential file and may never be published.
When are motions to seal the record used?
Motions to seal the record are used for cases where there is confidential or sensitive information that should not be released to the public. An example would be a case involving confidential business information. Instead of forcing the business to release the information to the public, they may request that the record be sealed. This process ensures that litigants will not refuse to file simply because their personal information may be revealed by the court.
What cases are typically published?
Landmark decisions and those involving important aspects of the law are usually published. In fact, sometimes the importance of the decision outweighs the client’s right to secrecy. In those instances, as much information as necessary is changed in the appellate court’s brief to ensure that none of the parties are adversely affected by the publishing.
In general, the vast majority of appeals are not published. It is typically not because of a sealed record or even to protect parties, but simply because the Court of Appeals simply affirmed the lower court’s decision and did not write its own opinion.