In practice, the terms "unpublished case" and "unreported case" are used interchangeably; however, there is a nuanced distinction between these terms.
An unpublished case is one where:
An unreported case has not been published in a hard copy reporter series, such as the West Regional and Federal Reporters from the National Reporter System (F.3d, N.E.2d, etc.).
In the legal domain, courts designate opinions as "unpublished" if they do not add anything new to the respective body of law. Consequently, an opinion is considered published unless explicitly labeled as unpublished. It is worth noting that only a small percentage of cases are designated for publication by a court and subsequently published in a reporter. However, many cases are unpublished but still available in legal databases such as Westlaw, Lexis, and Bloomberg Law.
It is imperative to exercise caution when using unpublished opinions. Courts have varying rules and regulations regarding the acceptability of citations to unpublished opinions. Nevertheless, Federal Rule of Appellate Procedure 32.1 provides that a court of appeals may not prohibit a party from citing an unpublished opinion of a federal court for its persuasive value or any other reason. This rule applies only to unpublished opinions issued on or after January 1, 2007. The citation of unpublished opinions issued before that date would continue to be governed by the local rules of the circuits.
In Illinois, Supreme Court Rule 23 initially allowed reviewing courts in Illinois to issue decisions as unpublished orders if the ruling does not establish law and is, therefore, not precedential. However, the amendment to Rule 23, effective from January 1, 2021, now allows these unpublished orders to be cited for persuasive purposes.
The Bluebook describes how to cite unpublished or unreported cases, and there are examples in the chart at the beginning of R10, p. 96, and as part of R10.8.1, pp. 112-14. According to R10.8.1, there are two types of sources for unpublished cases: (1) cases available on widely available electronic databases and (2) cases available in slip opinions.
When a case is unreported but available on a widely used electronic database, it may be cited in that database. Provide the case name, docket number, database identifier, court name, and full date of the most recent major disposition of the case. Cite the case docket number exactly as it appears. If the database contains codes or numbers that uniquely identify the case (as do WestLaw (WL), Lexis (LEXIS), and Bloomberg Law (BL)), these must be given. Screen or page numbers, if the database assigns them, should be preceded by an asterisk; paragraph numbers, if assigned, should be preceded by a paragraph symbol.
Examples for Whitepages (See R10.8.1(a))
WestLaw
Lexis
Bloomberg
Examples for Bluepages (See B10.1.4)
WestLaw
Lexis
Bloomberg
When a new case has been issued but has not been added to a reporter yet, it is available as a slip opinion. The Bluebook has helpful guidelines for citing such cases (B10.1.4, p. 15 & R10.8.1(b), p. 113). If a case is unreported but can be found as a slip opinion, simply include the docket number, court, and full date of the most recent disposition of the case. Keeping track of all this information will make it easier to access and cite the case in the future.
Examples for the Whitepages (R10.8.1(b))
Examples for the Bluepages (B10.1.4)