Cal. Litig. 2020, Volume 33, Number 1

Letter to the Editor

Having just finished reading the article in California Litigation about under-publication of Court of Appeal opinions (Grimes & SeLegue, Is It Time for a MajorShiftin ThinkingAbout Under-publication of Court of Appeal Opinions in California? (2019) 32:3 Cal. Lit. 14), I write to express my enthusiastic agreement with it. I know in the Probate area it would be very useful to be able to cite to unpublished decisions. There are not many published decisions in this area and it is one where there are often complex issues for which analysis or guidance would be helpful. In turn, the Supreme Court then takes very few Probate cases — thereby further reducing the chances of obtaining needed law. In reviewing unpublished decisions myself to keep up, I am often surprised why opinions would not have been published. It also seems so much effort is put into these decisions and then that they cannot be used is a poor use of all that work. There seems also a growing trend of lawyers referring to unpublished decisions — even when knowing they are not allowed to do so — because they often provide useful analysis. It is hard to tell counsel not to do so where there may be no other authority. I suspect most Probate judges and lawyers would support being able to cite to unpublished decisions.

Hon. David J. Cowan
Supervising Judge, Probate & Mental Health Depts.
Los Angeles County Superior Court

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