Superior Court aims to begin putting unpublished memorandum opinions online by year's end

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The state Superior Court will begin posting all unpublished memorandum decisions on its website in the "very near future," according to President Judge Correale F. Stevens.

Judge Stevens said the court's technology department is working on the matter and the goal is to start "definitely by the end of the year, but it may even be sooner than that."

The announcement comes a little more than a year after the court began identifying the authors of its memorandum decisions. At the time, a number of practitioners hoped that those opinions would become more easily accessible.

Judge Stevens said the court has been discussing the idea since as far back as four or five years ago, but several judges were concerned about its viability from a technological aspect, because the Superior Court generates so many memorandum opinions.

Beyond that, however, Judge Stevens said he couldn't find a reason the opinions were not being posted.

Eventually, the demand from Pennsylvania lawyers and the public to post the decisions led to a consensus of the court's judges, he said.

And while the court will need to be careful with regard to decisions related to the Family Fast Track Program to ensure that victims' and minors' names are not identified, Judge Stevens said the court is prepared to take precautions.

"We're trying to be as open and responsive to the bar and public as we can be," he said. "I just hope the bar understands there are going to be a lot of memorandums."

In 2011 alone, according to case-load statistics on the Superior Court's website, the court issued 4,879 unpublished memorandum decisions versus only 278 published opinions.

In other words, nearly 95 percent of the output and decisions the court generated last year were unpublished.

Judge Stevens said memorandum decisions will continue to have no precedential or persuasive value, though he added that the court plans to revisit that issue in the next six months to a year.

"I don't anticipate that in the near future they're going to be precedential," Judge Stevens said, noting that some other courts do allow memorandum decisions to be cited for "persuasive authority," meaning judges and attorneys can cite the memos in subsequent arguments or decisions, so long as they identify them as judicial memos and not precedential opinions.

Last year, the state's Commonwealth Court amended its own internal operating procedure to permit parties to cite unreported panel decisions issued after Jan. 5, 2008, for persuasive -- but not precedential -- value.

Judge David N. Wecht, who was elected to the Superior Court in November and had been a strong supporter of increasing the accessibility of unpublished memorandums during his campaign for the bench, commended his colleagues on the decision to begin posting them online and said he's hopeful it marks a step toward allowing memorandums to be cited for persuasive value at the Superior Court level as well.

"Speaking only for myself, I believe we will ultimately head in that direction," Judge Wecht said.

Howard J. Bashman, a solo appellate lawyer in Willow Grove, Pa., said he would support that move, but added that he's happy just to hear that those decisions will now be more accessible.

"The necessary first step is to make them available," he said, calling it a "wonderful development."

Carl A. Solano, co-chair of Schnader Harrison Segal & Lewis' appellate practice group in Philadelphia, wondered whether legal research services like LexisNexis and Westlaw would begin carrying Superior Court memorandum decisions, but Judge Stevens told the Law Weekly that the court has no say in that matter.

Initially, at least, the decisions will be available on the Superior Court's official website, to which the Administrative Office of Pennsylvania Courts' website will link.

legalnews

Zack Needles: zneedles@alm.com or 215-557-2493. To read more articles like this, visit www.thelegalintelligencer.com.


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