Cal. Litig. 2016, Volume 29, Number 2

Editor’s Foreword Baby Steps: On the Path to Full Publication?

By Benjamin G. Shatz

Snarky east-coasters are fond of saying that the country was tilted west, and all the loose nuts slid down to the left coast. That sentiment is mere jealousy, of course. California is a wonderfully unique place. Any nuttiness just enhances the flavor. California law, of course, also has its peculiarities — especially when viewed by outsiders. This naturally includes certain features of California litigation. Probably the biggest perplexing anomaly concerns "unpublished" and "depublished" appellate opinions — these terms honored by quotation marks because they can be hard to understand literally in today’s digital world, where all written decisions are so readily available. Yet every litigator must understand how publication and depublication work because getting it wrong can get you into hot water.

This year marks a huge change in the publication status of an admittedly small class of cases: When the California Supreme Court grants review of a published opinion, the case is no longer automatically depublished. (See Cal. Rules of Court, rule 8.1105(e) (1)(B), amended effective July 1, 2016.) Did you hear that? Those were shouts of joy from lawyers opposed to the very notion that a hard-litigated case, and no doubt hard-drafted published opinion, would simply vanish solely because the Supreme Court decided to weigh in. Indeed, there are many lawyers who find the whole idea of any "unpublished" appellate decision decidedly distasteful.

The welcome demise of automatic depublication, however, merely whets the appetite of those who would like to eradicate other forms of depublication and nonpublication. Exhibit A is our lead article by Justice Kline and Jerry Falk, who make the case that It’s Time To Replace Summary Depublication (i.e., selective depublication under rule 8.1105(e)(2)) by the California Supreme Court with Something Better. Hence our cover illustration, Baby Steps. Is eliminating automatic depublication the first move toward eliminating selective depublication, and perhaps toward ending nonpublication? Time will tell.

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