Divorce Mediation Blog

Lawyers Weekly Takes On Rule 1:28: We Agree

Wednesday, November 04, 2015

We have commented here, on a number of occasions, about the Appeals Court's use and misuse of Rule 1:28's so-called "unpublished" opinions.

They are informal, scant on facts and often reasoning, sometimes obscure and too-often just confusing to family law discourse. If the Appeals Court is not going to stand behind its cases as precedent, or if an opinion is truly for the sole benefit of the captioned parties, the public record would be better served by a simple "affirmed" or "reversed" notation. As public records, the "full" opinions would be available to the highly motivated, but the cases would not be citable from the current netherworld of "persuasive but not precedent", to which the Appeals Court has assigned them.

For that reason, we delighted in reading October 26th's Massachusetts Lawyers Weekly, wherein the Editorial Board opined, at p. 38, that newly minted Chief Justice Scott L. Kafker should pay "immediate attention" to the problem of Rule 1:28. Lawyers Weekly described the intent of the rule to address "straightforward cases" and that the Appeals Court overuses the rule to the public's detriment. While our critique goes further, the editorial's targeting of the issue is welcome; and we thank the board for its call to action.

Either way: elevate all opinions to the level of precedent, then analyze and write them accordingly; or reduce them to simple announcements of the action taken on appeal. We respect the burden that the Appeals Court's unchecked, non-discretionary caseload poses. But do something please, Chief Justice Kafker, about this unhelpful practice.

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