The Oklahoma Bar Journal February 2023

On average, the Court of Civil Appeals publishes 10-15% of its decisions. Generally, opinions of the Court of Civil Appeals are persuasive only. Even when an opinion is released for publication by order of the Court of Civil Appeals , it is merely persuasive and has no precedential value. 52 Only if the Supreme Court orders a Court of Civil Appeals opinion approved for publication is it given precedential effect. 53 Such an opinion bears the notation “Approved for Publication by the Supreme Court.” 54 Only then may the Court of Civil Appeals case be cited as precedent. 55 In your briefs, use the parenthetical “(approved for publication by the Supreme Court)” to alert the judge and staff attorney reviewing your appeal that it is not merely a persuasive Court of Civil Appeals opinion. While it is extremely rare, sometimes the Supreme Court notation is not added to an OK CIV APP opinion on OSCN or Westlaw. If you find an OK CIV APP case that supports your position, double-check the appel late court docket on OSCN to see if the Supreme Court filed an order approving it for publication. In 2022, the Supreme Court amended Rule 1.200(c) to permit parties to cite unpublished opin ions of the Court of Civil Appeals in briefs and other materials presented to the court. 56 The rule requires that parties include either a hyperlink to the opinion or attach a copy of the opinion to the brief. 57 While this change does not give the unpublished opinion any weight, it may be useful when there is no binding precedent. Some judges and staff attorneys are interested in how other divisions have ruled on the same issue. Furthermore, a conflict between divisions of the Court of Civil Appeals could later be a reason for the Supreme Court to grant certiorari. 58

reviewed by the Supreme Court on certiorari. Whether a party has a statutory or contractual right to appellate attorney fees is a question of law subject to de novo review. 49 If the appellate attorney fees award is discretionary, the decision is reviewed for an abuse of discretion. 50

WEIGHT OF AUTHORITY Opinions of the Court of Civil Appeals are either 1) unpublished, 2) published by order of the Court of Civil Appeals or 3) approved for publication by the Supreme Court. Most opinions issued by the Court of Civil Appeals are unpub lished. The division issuing the opinion may vote to publish if it resolves novel or unusual issues. 51

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THE OKLAHOMA BAR JOURNAL