WeCite Project’s win-win opportunities

Analyzing how a given opinion has been impacted by subsequent decisions is an essential part of legal research.   Consequently, the work of the Free Law movement cannot stop with making opinions freely available: a free and robust citator is also needed.

A gargantuan effort will be required to build (and continually update) such a citator. The newly launched WeCite Project, co-sponsored by the Stanford Center for Legal Informatics and the free legal research platform Casetext, aims to bring the win-win power of crowdsourcing to the task. Along with the traditional crowdsourcing strategy of enabling a community of like-minded people to easily contribute,  the WeCite Project is also giving law schools the unique opportunity to do their fair share in another win-win way:  students learn about citators and citation analysis; the database grows.  Already a number of advanced legal research classes have already participated and our class this spring will join the crowd.

The Columbia Society for Law, Science and Technology is hosting a WeCite Event at Columbia Law School on March 26, 2014 (see details and RSVP here: https://casetext.com/wecite/event).  Any and all who are passionate about legal research and/or equal access to the law are invited to attend.  Those who cannot make it to New York can also participate remotely.

Importantly, any and all citator entries created under the WeCite Project (“wecites”) are public domain under a Creative Commons SA license.  Casetext will also be creating an API to allow anyone to bulk download wecites.

The beauty of crowdsourcing is that small contributions from individuals can aggregate into something magnificent.  For those who are interesting in pitching in, instructions can be found here: https://casetext.com/wecite

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, Illustrated

To better illustrate some of the points made by Paul in his posting Selling others’ Briefs, Bryan L. Jarrett (our former student and now an associate at Jones Day) has given us permission to post two of the charts he created for his paper “Vending Appellate Briefs.”  (To recap, Bryan’s paper surveyed the practices of sixteen state jurisdictions and DC — the ten largest ABA jurisdictions (by membership size) and seven jurisdictions that did not supply copies of appellate briefs to commercial vendors.  The data was gathered in 2010.)

The first table (“Table I: The Ten Largest Jurisdictions”) displays five questions (for the jurisdictions of NY, CA, TX, FL, IL, DC, MA, OH, PA and NJ): do these jurisdictions provide appellate briefs online; do they have an arrangement with a vendor (Westlaw, Lexis) for the distribution of briefs; do these jurisdictions send appellate briefs directly to vendors; is the exchange of briefs quid pro quo; and have any attorneys objected.

The second table (“Table II: Jurisdictions that Do Not Supply Their Briefs to Vendors”) focuses on seven jurisdictions (NV, NH, NM, OK, VT, UT, and WY) and addresses the same questions as in Table I.

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.

Read the Letter – Update: LexisNexis and Westlaw Violating Copyright?

Yesterday, Paul blogged about the Daily Journal article: “California Courts Come Under Fire for Giving Legal Briefs to For-Profit Firms.”  There was a lot of interest in that posting — our statistics show it as our busiest day ever.  We had 634 visits by 4pm.

This story was picked up by the Volokh Conspiracy with some really interesting commentary.

There was so much interest in that topic that we followed up with attorney Ed Connor and we are now able to share with our readers, with his permission, the letter that he sent to Justice Ronald M. George and Mr. William C. Vickrey.

The text of the letter is available as a PDF here.

LexisNexis and Westlaw violating copyright?

Interesting story in today’s Daily Journal:

California Courts Come Under Fire for Giving Legal Briefs to For-Profit Firms

Lawyers Challenge to State Supreme Court Practice Says Lexis, Westlaw Are Infringing on Copyright

By Amy Yarbrough and Laura Ernde
Daily Journal Staff Writers

. . .

. . . Several months ago, . . .  Irvine attorney[Ed Connor] learned the California Supreme Court had given his 143-page brief to the legal information service LexisNexis, which was making it available online for a fee. . . .

. . .

“It’s something that we just worked really hard on, and I didn’t give permission to Lexis to put it up there,” Connor said.

. . .
Last week, Connor wrote a letter to Chief Justice Ronald M. George and William Vickrey, who heads the Administrative Office of the Courts, suggesting the practice is opening the court up to legal challenges based on copyright law.

Connor said his first reaction was to file a class action lawsuit for copyright infringement against LexisNexis and Westlaw, . . .

. . .

Santa Clara University Law School professor Eric Goldman said there are legitimate legal questions about whether briefs can be copyrighted, who owns that copyright and whether the documents are free to be distributed under the Fair Use Doctrine.

. . .