It seems that back in the day one relied on law reporters’ reports to be able to study and cite precedential decisions in future cases. A decision being featured in an edition of a law report enables one to formally cite it in a case, and for a judge to verify the citation.

Yet ultimately these reports are created by unofficial private entities who may not report every decision ever made in every court.

Suppose Bob sits in the public gallery of a court that is not a court of record that makes official stenographic transcripts of proceedings as a matter of course and witnesses a decision be handed down.

Then the judge passed away the following month.

The following month after that, Bob is a party to his own case and wishes to cite this decision as a binding precedent of coordinate jurisdiction.

If the precedent is not reported and the judge no longer is with the court and wider world, what realistic way is there to verify the details and facts of the case cited by Bob when the court likely has no written decision on file but only the ultimate resultant one-line verdict/order? In principle in case the fact patterns match this is still a binding precedent that the court must heed and obey (supposing of course that the facts actually do match each other).

So how did/does this (used to) play out? How is the question settled? Even if the judge wasn’t deceased they may have still forgotten in time the details of the case in question.

1 Answer 1


In the U.K., there is a practice direction (see para. 10):

Where a judgment has not been reported, reference may be made to the official transcript if that is available, not the handed-down text of the judgment, as this may have been subject to late revision after the text was handed down. Official transcripts may be obtained from, for instance, BAILII (http://www.bailii.org/). An unreported case should not usually be cited unless it contains a relevant statement of legal principle not found in reported authority.

If there is no reliable record of a previous judge's reasoning, then practically, no subsequent judge can be bound by that reasoning. "The doctrine of precedent depends entirely on the court being made aware of the earlier decision by which it is bound" (ICLR, "Can a case be a precedent if it hasn’t been published?") The ICLR continues:

there should either be a copy of the unreported judgment produced to the court, or a reliable note of it vouched for by a barrister or solicitor. A discussion or detailed footnote in a textbook might be sufficient, if its accuracy were similarly vouched for. A reference to the case in another, reported case, if sufficiently detailed, might be good enough. However, it seems unlikely that mere anecdotal recollection of the sort that was commonplace before the 16th century would suffice.

Around the world, jurisdictions or courts can set specific rules for themselves. E.g. in the California court system, except where relevant for "doctrines of law of the case, res judicata, or collateral estoppel" or where relevant for criminal or disciplinary action affecting a party to the case:

an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action.

(Rule 8.1115).


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