Tuesday, March 8, 2005
California’s abuse of the unpublished decision seems to be getting worse every day. In the first few days of March, the state’s appellate courts issued 12 cases that mentioned "breach of contract." Eleven of those were designated as "unpublished."
The extraordinary nature of this is shown by one of the unpublished cases, Russomano v. Russo, 2005 Cal. App. Unpub. LEXIS 1763 (2d Dist. March 1, 2005). This is hardly the sort of cookie-cutter decision that advocates of unpublished opinions often described. On the contrary, it’s a complex dispute among a tangled array of business entities, involving breach of contract, misappropriation of intellectual property, and tortious interference with contract. Among the various issues raised (in addition to the substantive ones) were appropriate jury instructions for joint and several liability, the liability of limited partners who actively engage in the LP's business activities, and the appropriateness of awarding expert witness fees fees when a settlement offer is rejected.
The plaintiff won $8 million in compensatory damages at trial and $46 million in punitives; one defendant's expert witness fees alone were $64,000. The appellate opinion runs 22,000 words—just under the preferred limit for a Harvard Law Review article—cites scores of cases and statutes, and has 33 footnotes. Yet none of this can be cited by future litigants and the court is free to come to the opposite conclusion in the next case.
It's getting hard to see the difference between an arbitral decision and the sort of private ruling that the California courts provide.