Searching for law that is “well-settled.”

It is certainly well-settled that Stanford Law School graduates are doing some very exciting things in the world of legal informatics.  I’ve posted before about Ravel law, founded by our alumni Dan Lewis and Nik Reed.  Alumnus Jacob Heller is also doing some very cool things in this space (stay tuned!) and alumnus Pablo Arredondo just created the new tool described below:

The wellsettled.com search engine enables users to search two unique databases:
Unequivocal Articulations of Legal Principles 
Occasionally a court will issue a written opinion containing an unequivocal articulation
of a legal principle. If the common law were a biological genome, these articulations would
be the “genes”. Luckily, these common law genes are frequently introduced by specific phrases, the most prelevant of which are “It is well settled that…”  and “It is well established that…”
To continue with the genomics anology, these introductory phrases can be likened to the “start codons” that indicate when a DNA sequence is switching from non-coding to coding. Leveraging these common law “start codons”, the wellsettled.com engine allows users to run queries against, and only against, concise articulations of law.
Court-Generated Summaries Of Earlier Judicial Opinions 
Leading legal search companies employ armies of attorneys to read judicial opinions and generate written summaries of them. At the same time however, judges (and their clerks) are also reading and summarizing prior decisions.  Specifically, when citing to an earlier decision, judges will often include a parenthetical that concisely conveys the legal substance of the decision. Judge-generated case summaries are often of a better quality than those generated by the private sector.
To date, the judge-generated case summaries tucked away in parentheticals have been grossly underutilized. The wellsettled.com engine seeks to change that by enabling users to run queries against, and only against, these summaries. Once again common law “codons” are leveraged; in this case prime examples include  “(holding that…)”  and  (“finding that…)” .  The result is that attorneys can review case summaries that are at once concise, trustworthy, and free.
The wellsettled.com search engine is very much a work in progress, currently residing somewhere between a prototype and a beta. Phrases can be searched in quotations (e.g. “felony murder”). Rudimentary boolean searching is enabled using mySQL syntax. Full-text opinions are not available. Many full-text opinions are however freely available from a number of sources including scholar.google.com and ravellaw.com.  Any and all feedback is welcome and appreciated, and can be directed to info@wellsettled.com.
The wellsettled.com engine was conceived and built by Pablo Arredondo.  A graduate of Stanford Law School, Pablo has practiced law in California and New York and recently completed a fellowship at Stanford’s Center For Legal Informatics where his work focused on contextual (matter-specific) legal search/rankings. In college, Pablo worked at the Lawrence Berkeley National Laboratory’s Human Genome Center where, during the heyday of the Human Genome Project, he was tasked with critical duties such as replacing the liquid nitrogen tank and injecting mice with pregnant mare serum. He hasn’t shut up about genomes since.

Writing a winning brief, in three easy steps

The best way to become a good writer is to read a lot of good writing.  And to me there’s no better legal writing than that of Judge Ruggero Aldisert.

Judge Aldisert just published the third edition of his important and popular book on Opinion Writing (details from the catalog record copied below).  This third edition (listen up, law students) includes a new chapter on law clerk duties, an expanded treatment of trial court opinions, and new chapters on administrative law judges and arbitration procedures and opinions.

But, one might ask, how will a book on opinion writing help me write a winning brief?  The answer is found in what the good judge calls his “chambers mantra” — “writing a good opinion is the best training on how to write a good brief.”

And about those three steps.  Opinion Writing, 3rd edition includes three checklists (these checklists, alone, are worth the price of the book) on opinion writing that can be used in brief writing:

1. Writing it.

2. Testing it.

3. Shortening it.

The book asks:  Why use checklists for writing, testing and shortening an opinion?  The answer:  “Checklists ensure that you touch all the bases on your way to file a ‘home run’ opinion.”  These checklists are gold, pure gold.

Here’s the book’s description from our library catalog:

Opinion writing / Ruggero J. Aldisert.

Author/Creator:
        Aldisert, Ruggero J.

Language:
        English

Imprint:
        3rd ed.
        Durham, N.C. : Carolina Academic Press, c2012.

Bibliography:
        Includes bibliographical references and index.

Contents:
        Writing judicial opinions
        To write or not to write
        Reaching and justifying the decision : a distinction with a difference
        Judicial declaration of public policy
        The outline of your opinion
        Jurisdiction and standards of review
        Orientation paragraph
        Summary of issues
        Statement of facts
        Writing the reasons for the decision.

ISBN:
        9781611631234
        1611631238

Subjects:
        Legal composition.
        Judicial opinions > United States.

At the Library:
        Crown (Law) > Stacks 1
                KF250 .A35 2012
                KF250 .A35 2012
                KF250 .A35 2012

Bookmark: http://searchworks.stanford.edu/catalog/9699810

Yes, we have three copies.  Every law library should have at least that many, and law librarians should encourage their students, especially their students in law school clinics, to read and heed the judge’s insightful tips.

Full disclosure:  I met Judge Aldisert in 2008 when my daughter was serving as one of his law clerks.

Selling others’ briefs

Following up on George’s post “A pair of lawyers . . . sue West and LexisNexis for reproducing their court filings,” I took a second look at a directed research paper a student did for me a couple of years ago on the subject of vending appellate briefs.  The student surveyed 17 jurisdictions — 10 that provide briefs to vendors and 7 that do not.

One of the interesting take-aways from the student’s paper is the wide variety in means by which vendors have obtained briefs.  Some states have made various arrangements with vendors; others refuse to do so.  For a very few states there is a distinct quid pro quo. Past practices will change, though, as the vendors are increasingly just pulling from posted copies; unless a court rules against such a practice it will only accelerate.

California and Pennsylvania, of the surveyed jurisdictions, both have quid pro quo arrangements.  For example, in California, the state Supreme Court used to send copies of the briefs to certain public law libraries but stopped the practice when it made a deal with Court Records Service (later acquired by West Publishing) whereby the court receives microfiche copies in return for providing the briefs.

Massachusetts has what seems like an odd arrangement whereby briefs are scanned once at the Clerk’s Office, then sent to Westlaw, where they are scanned again and later returned.

To write the paper the student called librarians, court clerks, reporters of decisions, and the vendors.  None of the surveyed court staff members reported any attorney dissatisfaction with the practice of providing briefs to the vendors.  And in one state, the Reporter of Decisions speculated that attorneys actually liked “the free advertising.”  And many clerks were surprised that this has become an issue at all since the documents are public records.

Yes, they are public records but that doesn’t mean they are in the public domain.  Yet who wins if a court rules that Westlaw and LexisNexis are infringing authors’ copyright?  My student thinks that the attorney authors are really the only winners (if they receive royalties) and most of them have already received substantial compensation for writing these briefs and all other players (the courts, the public) are losers.   I hope that in the spirit of pro bono most attorneys will continue to make their appellate briefs available to all the world and not press ownership claims (with perhaps some sort of opt-out provision for the rare instances when, for privacy or other sensitive concerns, certain briefs should not be published).   It would also be a better world if LexisNexis and Westlaw could also take responsible pro bono actions here, as suggested by Ed Connor and not profit from the work product of those in the private sector.

Here’s the cite to my student’s paper:  Bryan Jarrett, Vending Appellate Briefs: The practice, its future, and implications if found illegal.   Submitted October 30, 2010.

Abstract:

This paper analyzes the collection and sale of appellate briefs.  It presents the findings of a survey of seventeen jurisdictions.  The paper discusses how Westlaw and LexisNexis access the briefs, whether they have structured mutually beneficial agreements with the courts that provide the briefs, whether attorneys commonly object to the sale of their briefs, the likely future of the industry, and the potential policy implications of a successful legal challenge to the industry’s practices.

Becoming the “compleat lawyer” the Aldisert way

From time to time I will get a call or e-mail from a proud parent whose son or daughter has been admitted to Stanford Law School.  The parent wants my advice on a book for their accomplished child to read upon the beginning of their new-found career.  A wonderful book has just come along which fits the bill perfectly:  Judge Ruggero Aldisert’s A Judge’s Advice: 50 Years on the Bench.

This slender volume packs a lot of punch.  In less than 250 pages the judge offers answers to questions that have occupied his thoughts for decades:  : “What is the bedrock of our common law system? What are trial and appellate judges really looking for? What is the logical configuration that is absolutely necessary in any legal argument? What practical challenges do judges face when deciding a case? What is the difference between the philosophy of law and a philosophy of law? What is the difference between a judge making a decision and a judge justifying it, and why does that difference matter to me?  Precedent in the law: When do you kiss it and when do you kill it?”

The judge organizes his thoughts among the following five themes:

  • Our Common Law Tradition: Still Alive and Kicking
  • Logic and Law
  • Avoiding Assembly Line Justice?
  • The “Write Stuff”
  • How Judges Decide Cases

And within these themes are found the following chapters:

The house of the law — The role of the courts in contemporary society — Precedent : what it is and what it isn’t, when do we kiss it and when do we kill it? — Elements of legal thinking — Logic for law students : how to think like a lawyer — Formal and informal fallacies — State courts and federalism — Life in the raw in appellate courts — “The seniors” suggest a solution — Brief writing — Opinion writers and law review writers: a community and continuity of approach — Reading and evaluating an appellate opinion — Philosophy, jurisprudence and jurisprudential temperament of federal judges — Making the decision — Justifying the decision.

While I know that all law students would benefit greatly from reading this book, when I first saw it our international students immediately came to mind as no other single volume that I am aware of so neatly and clearly explains the American legal system.  This book explains stare decisis better than anything else available.

Judge Aldisert writes about his particular passion — the law — with an enthusiasm that is almost exhausting.  Through this book the law student can get a glimpse of just how enormously satisfying the next 60 or 70 years of his or her life can be.

As the judge states in his Introduction:  “. . . These pages flesh out the instruments and implements of lawyers with a far-ranging ‘view from above’ with one objective in mind: to enrich the skills of these men and women so that each may bear — to borrow from Izaak Walton’s The Compleat Angler — the noble title of ‘compleat lawyer.’

This book really should be required reading for all law students, lawyers and others too.  Judge Aldisert is one of my heroes, along with others who inspire me such as Roger Ebert, Vin Scully, Tony Bennett and Keiko Fukuda (Google her)  — people who, while they may have stopped buying green bananas, they have not stopped working and never will.  These are people who make no distinction between work and play and who will be carried off the job feet-first.  They know the secret.   People who I want to be like when I grow up.

Full disclosure:  I was first charmed by Judge Aldisert when I met him during my daughter’s clerkship for him.

New to the legal lexicon: dissental and concurral

A story in today’s Daily Journal reports on the usage by Chief Judge Alex Kozinski of the 9th Circuit U.S. Court of Appeals of two newly coined (by him) words: dissental and concurral.

According to the story, “Chief Judge coins new words for failed en banc calls – Alex Kozinski coined his own words to describe a common practice,” by John Roemer,

Dissental conflates the words “dissent” and “denial” while concurral combines “concurrence” with “denial.” They are intended to replace the clunkier phrases “dissent from denial of rehearing en banc” or “concurrence in denial of rehearing en banc” used by the court.

The words are used “as shorthand descriptions of judges’ widening practice of delivering often-passionate commentary on failed en banc calls.’

So, have some fun and and search for those terms in CALR databases.

Free and really good information from Justia – daily opinion summaries; weekly practice area summaries

Our friends at Justia sent an e-mail to law-lib about their new free case summary service.  Since all the world doesn’t read law-lib, I’ve pasted below Tim Stanley’s exciting  announcement.  I’ve signed up for the FREE (my favorite word) service, and it’s a terrific tool for keeping up with decisional developments both by specific court and also by subject matter.  I’m going to encourage all of my students to sign up too, especially those who want a judicial clerkship, as this is a nifty tool for students to learn about very recent decisions from the judges with whom they are interested in seeking interviews and positions.

Here’s Tim’s e-mail:

 

Hi All,

Justia would like to introduce our new Free Daily Opinion Summaries service.

We will be writing daily summaries for the Federal Appellate Courts
and selected state supreme courts (eventually we will add them all).
You can subscribe to the summary emails at:

     http://Daily.Justia.com

We will also be sending out weekly practice area summaries emails that
will include all of the summaries for all courts we wrote that week in
the legal practice area.

Here are some examples from last week:

U.S. 9th Circuit Court of Appeals:    http://j.st/ost

Environmental Law Weekly Summaries:    http://j.st/osv

If you have any suggestions for layouts, additional courts or practice
areas, please let us know. The current courts and practice areas we
cover are:

DAILY COURT SUMMARIES

U.S. Federal Courts: U.S. Supreme Court and the Federal, D.C., 1st,
2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th Circuit Courts of
Appeals

U.S. State Top Courts: Arizona, Arkansas, California, Connecticut,
Delaware, Florida, Georgia, Hawaii, Idaho, Indiana, Iowa, Kansas,
Kentucky, Louisiana, Maine, Maryland, Michigan, Minnesota, Missouri,
Nevada, New York, Ohio, Pennsylvania, South Carolina, South Dakota,
Texas, Utah, Vermont, Virginia, Washington, Wisconsin, Wyoming

And a few other courts like the Delaware Court of Chancery. We will be
adding more state courts in the near future. The full continuously
updated list is at http://Daily.Justia.com

WEEKLY PRACTICE AREA SUMMARIES

The weekly practice area opinion summaries, include all of the
summaries for all courts we wrote that week in the legal practice
area, are provided for the following:

Admiralty & Maritime Law, Aerospace/Defense, Agriculture Law, Animal /
Dog Law, Antitrust & Trade Regulation, Arbitration & Mediation,
Aviation, Banking, Bankruptcy, Business Law, Civil Rights, Class
Action, Commercial Law, Communications Law, Constitutional Law,
Construction Law, Consumer Law, Contracts, Copyright, Corporate
Compliance, Criminal Law, Drugs & Biotech, Education Law, Election
Law, Energy, Oil & Gas Law, Entertainment & Sports Law, Environmental
Law, ERISA, Family Law, Gaming Law, Government & Administrative Law,
Government Contracts, Health Law, Immigration Law, Injury Law,
Insurance Law, Intellectual Property, International Law, International
Trade, Internet Law, Juvenile Law, Labor & Employment Law, Landlord -
Tenant, Legal Ethics, Medical Malpractice, Mergers & Acquisitions,
Military Law, Native American Law, Non-Profit Corporations, Patents,
Products Liability, Professional Malpractice & Ethics, Public
Benefits, Real Estate & Property Law, Securities Law, Tax Law,
Trademark, Transportation Law, Trusts & Estates, Utilities Law, White
Collar Crime, Zoning, Planning & Land Use,

If you have other practice areas you would like us to break out, let
us know. We are not against adding some more as long as there are
enough opinions in the area and it does not nearly overlap one of the
above.

You can see the current list of courts and practice areas (in a
readable table format) at http://Daily.Justia.com

Again it is totally free :)

Peace,

Tim

————————————————————
Timothy Stanley                       . . .

Keeping up with the federal courts with CourtListener

The CourtListener.com

From the website:

The goal of the site is to create a free and competitive real time alert tool for the U.S. judicial system.

At present, the site has daily information regarding all precedential opinions issued by the 13 federal circuit courts and the Supreme Court of the United States. Each day, we also have the non-precedential opinions from all of the Circuit courts except the D.C. Circuit. This means that by 5:10pm PST, the database will be updated with the opinions of the day, with custom alerts going out shortly thereafter.

This [open source] site was created by Michael Lissner as part of a masters thesis at the University of California, Berkeley School of Information.

Law.gov video presentation now online!

In a January 2, 2010 op-ed in the New York Times entitled “A Nation of Do-It-Yourself Lawyers,” California Chief Justice Ronald George and New Hampshire Chief Justice John T. Broderick Jr. asked “how can we help those who are left to represent themselves in court?”

One thing we can do is make the law of the nation freely available.  Today much of the law remains behind a pay wall, often a very expensive pay wall.

There have been efforts to liberate the law — five guys at Cornell (Cornell’s Legal Information Institute), three guys at Google (Google Scholar legal opinions), and others.  The federal government has made strides too, eCFR remains a model of free, updated legal content, but as the first paragraph explains on the eCFR website disclaims, “It is not an official legal edition of the CFR.”  State government efforts are as varied as the 50 states and District of Columbia.

So what to do?

Law.gov is a campaign to identify what a national law registry should include, and to make recommendations to the policy makers on how to structure a repository of all primary legal materials (and maybe more) at all levels of government.

The Stanford Law Library hosted a Law.gov kickoff event on January 12, 2010 and the day’s events included a terrific panel discussion with Carl Malamud, Anurag Acharya (Google Scholar lead engineer) and law professor Jonathan Zittrain, moderated by Stanford Law School lecturer Roberta Morris.  We now have a streaming video link from this discussion and it’s definitely worth viewing:

http://www.law.stanford.edu/calendar/details/3717/#related_media

Wikipedia in Court: When and How Citing Wikipedia and Other Consensus Websites is Appropriate

“Wikipedia in Court: When and How Citing Wikipedia and Other Consensus Websites is Appropriate”

HANNAH B. MURRAY, affiliation not provided to SSRN

JASON C. MILLER, Government of the United States of America – United States Court of Appeals for the Sixth Circuit

Practitioners and courts are relying more and more on Wikipedia, a free online encyclopedia that anyone can edit. Hundreds of court opinions, including at least one from every federal circuit court, and thousands of law review articles cite Wikipedia. Some opinions have relied on Wikipedia for technical information, although others only turned to the consensus website for background information on minor points.

This practice has generated controversy, with newspapers, professors, practitioners, and judges weighing in. Wikipedia in Court examines the controversy and the history of Wikipedia in court opinions before proposing a framework to determine when it is appropriate and inappropriate to rely on Wikipedia for authority in legal writing. Given the inconsistency in the legal community’s use of Wikipedia, courts and practitioners will benefit from this framework.

 

Source:  LSN Legal Writing Vol. 4 No. 32,  12/02/2009

Local Rules in the Wake of Federal Rule of Appellate Procedure 32.1

“Local Rules in the Wake of Federal Rule of Appellate Procedure 32.1″

DAVID R. CLEVELAND, Nova Southeastern University – Shepard Broad Law Center

Adoption of the Federal Rule of Appellate Procedure 32.1 has had a ripple effect throughout the federal courts of appeals, but it has not brought uniformity on the issue of unpublished opinions. The federal judiciary’s practice of issuing unpublished opinions traditionally ascribed three characteristics to such opinions: unpublished, non-citeable, and non-precedential. However, local rules of the Courts of Appeals are widely varied on these characteristics. The most fundamental jurisprudential question: “what is law?” has varying answers across a supposedly uniform federal system. From the types of cases eligible for unpublication to the limits of citation of unpublished opinions to the precedential status afforded such opinions, uncertainty and ambiguity abounds.

This article, Local Rules in the Wake of Federal Rule of Appellate Procedure 32.1, examines the federal judiciary’s desire for uniform rules on publication and citation (and its persistent avoidance of the precedent issue) regarding unpublished opinions. It then categorizes and analyzes the circuits’ local rules regarding publication, citation, and precedent in the wake of Federal Rule of Appellate Procedure 32.1. Finding significant discrepancies between circuit local rules in each of these three categories, the article argues for truly uniform publication, citation, and precedent rules – the most direct of which would be to end the experiment with unpublished opinions and recognize the full value of all circuit court opinions.

 

Source:  LSN Law & Courts Vol. 3 No. 59,  09/07/2009