Category Archives: Court reporting

The Decline and Fall of the Dominant Paradigm: Trustworthiness of Case Reports in the Digital Age

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The latest issue of the New York Law School Law Review just crossed my desk, with many interesting articles,  including this one by William R. Mills, associate librarian and professor of Legal Research:

New York Law School Law Review

Volume 53 2008/09

William R. Mills

The Decline and Fall of the Dominant Paradigm: Trustworthiness of Case Reports in the Digital Age

Professor Mills’s conclusion:

The foundation of trust that underpins our system of case law reporting has now been undermined. Cases posted to many mainstream Internet legal research sources, other than Lexis or Westlaw, appear with no strong guarantee of accuracy or authenticity. Scrupulous legal researchers who wish to independently verify the accuracy of the case reports they cite from Internet sources are met with the burden of comparing the electronic reports against print versions, which are the only ones that courts deem to be official. On a large scale, this burden can prove insurmountable. Furthermore, readers of modern legal literature, when encountering citations from the National Reporter System, have good reason to harbor doubt that the authors who wrote those citations actually consulted the editions that they cited. Moreover, if the authors did not actually consult the National Reporter System, or its established electronic counterparts Lexis or Westlaw, then there is no assurance that the sources they did consult were reliably accurate.

In the digital age, the foundation of trust in our case law reporting system, and in legal citation generally, must be rebuilt. Such a rebuilding effort cannot succeed by utilizing the technology of printed books. Today’s legal researchers are increasingly abandoning print sources in favor of their Internet-based counterparts. The rebuilding of trust in the case reporting system must take place in the realm of digital technology. It must focus on implementing digital safeguards within the process of dissemination of case law databases to better ensure the accuracy and security of information found in those databases.

While court systems and other government entities will obviously play major roles in this rebuilding effort, the legal profession would be naive to expect the government alone to accomplish this work. The government, after all, has never succeeded in creating an efficient case reporting system that served the needs of lawyers nationwide.  Rather, the rebuilding of the American case reporting system for the digital age must be an effort undertaken jointly by government, professional groups, and private enterprise.  The corporate proprietors of Westlaw and Lexis, as the inheritors of the West paradigm, ought not to resist this effort, but instead join in to facilitate its speedy success. Cooperation among all parties is essential, and private enterprise would be an ultimate beneficiary. The companies that market databases of case reports to lawyers have nothing to lose and much to gain from an improved system that bolsters the trustworthiness of these products.

Practitioners Beware…Research on Westlaw / Lexis is a Necessity in Texas?

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Just happened across the recent St. Mary’s Law Journal (Vol. 40, #3, 2009) and the following article by Andrew T. Solomon caught my attention, “Practitioners Beware: Under Amended TRAP 47, “Unpublished” Memorandum Opinions in Civil Cases are Binding and Research on Westlaw and Lexis is a Necessity.”

Anything that states that using Westlaw and Lexis is a necessity is going grab a law librarian’s attention.

The article discusses the 2003 and 2008 amendments to the Texas Rule of Appellate Procedure (TRAP) 47, which deal with the citation and precedential weight of unpublished and memorandum opinions.  Solomon writes:

“The 2003 amendment was seemingly designed to make the law more readily available by prohibiting the issuance of unpublished opinions in civil cases and and authorizing memorandum opinions in place of unpublished opinions.  Despite this intention, the 2003 amendment has failed to make the law in civil cases more readily available because the newly created memorandum opinions are only available electronically via Westlaw, Lexis, and the court websites, even though these opinions are designated for publication.  Also, the 2008 amendment has now made memorandum opinions issued in civil cases since 2003 fully precedential.  As a result, to completely research binding law in civil cases, Texas attorneys must now have access to Westlaw or Lexis because the court websites lack sophisticated search engines necessary to conduct competent legal research.”

[ARGH!]

“The amendment is flawed because it makes memorandum opinions precedential even though those opinions are only readily available on Westlaw and Lexis.  This has occurred in an era when only 60% of attorneys use fee-based online research services (i.e., Westlaw or Lexis) for state case law research.”

Solomon makes a number of recommendations, including “making all opinions readily available on a sophisticated, widely available, and unified website for the Texas courts of appeals.”

As it goes in the state song of Texas, “boldest and grandest, withstanding ev’ry test,” so an accessible, complete website for the courts in Texas seems only right.

Unpublished opinions

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A Slate piece, “Sotomayor’s Manly Man Ruling – Her bold ruling in favor of a man who claimed sex discrimination,” by Emily Bazelon, includes this paragraph on unpublished opinions:

Sotomayor agreed to issue an unsigned and unpublished opinion. The term “unpublished opinion” is a bit of a misnomer. These rulings appear in the Lexis and Westlaw databases, where lawyers do legal research. And since a change in the rules in 2007, lawyers have been able to cite unpublished opinions in other cases. But unpublished opinions have second-class status. They’re shorter and often still carry less weight–they’re persuasive rather than binding precedent, in lawyer’s terms. They are not supposed to be the way judges dispose of difficult cases that raise substantive or novel legal issues. But sometimes those cases sneak in, because once a culture of unpublished opinions takes hold in a particular circuit, it’s hard to control. And in the 2nd Circuit, I’m told, there’s a premium on unanimity and consensus, so a 3-0 unpublished opinion might trump a 2-1 published one, in some cases and in some judges’ eyes.

Westlaw rises to legal publishing fame by selling free information

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From the Minneapolis City Pages:  “Westlaw rises to legal publishing fame by selling free information,” by Erin Carlyle.

West makes its money by selling free, public information — specifically, court documents — to lawyers. On this simple model, the company raked in $3.5 billion in revenue last year, placing it on a par, sales-wise, with retail giant Abercrombie and Fitch. But its operating profit margin really impresses: At a whopping 32.1 percent, West outpaces that of tech giants like Google (19.4 percent), Amazon (3.4 percent), and eBay (20.8 percent). Westlaw excels at one simple task: saving lawyers time by making legal information more readily accessible. The company charges a firm of six to ten lawyers as much as $30,000 a year to access its state and federal databases. But since attorneys’ time is worth a lot of money, the service pays for itself. After all, the more work they can do, the more money they can make.

How did it do this?  According to the story, by following these eight rules:

Rule 1: Find a niche with growth potential

Rule 2: Organize information to make it useful

Rule 3: The internet is a distribution channel — not a product

Rule 4: Turn words into math

Rule 5: Separate the signal from the noise

Rule 6: Computers can’t do everything

Rule 7: Treat content like patented material

Rule 8: Print’s not dead, it just needs online help

The Next Generation of Legal Citations Survey, and Authentication and Link Rot Issues

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Link rot is a pet peeve of mine.  A posting I made on June 11, 2008, “Law School Laptop Bans,” already has a broken link to a news story and the posting isn’t even a year old yet.  And I can’t count the number of times I have found a terrific-sounding right-on-point resource in a law review footnote, only to find its URL leads to the dreaded “404 Not Found.”  But it’s more than a pet peeve issue, as this survey makes clear:

“The Next Generation of Legal Citations: A Survey of Internet Citations in the Opinions of the Washington Supreme Court and Washington Appellate Courts, 1999-2005″

Journal of Appellate Practice and Process, Vol. 9, No. 2, Fall 2007

TINA CHING, Seattle University School of Law

As more legal research is conducted online, it is reasonable to conclude that there will be a corresponding increase in citations to the Internet by judges in their opinions. With the widespread public use of the Internet to access information along with the constant changes and impermanence of websites, citing to the Internet should be an issue of increasing concern to the legal community across the country. This paper surveys the types of Internet sources the Washington state Supreme Court and Appellate Court justices are citing. It discusses the interrelated issues of link rot and the impermanence of web pages, citation format, authentication and preservation of online electronic legal information.

 

Source:  LSN Legal Information & Technology Vol. 1 No. 11,  04/29/2009

Monopolizing the Law

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From a fascinating, must-read brand new book by noted antitrust lawyer Gary Reback, Free the Market: Why Only Government Can Keep the Marketplace Competitive.

Free the Market: Why Only Government Can Keep the Marketplace Competitive
By Gary L. Reback
Portfolio Books, 2009
*****
Chapters 14, “Storytelling for Lawyers.” and 15, “Monopolizing the Law,” clearly explain how LexisNexis and Westlaw became the market forces that they are today.
From chapter 15:
. . . The West-Thomson merger had precisely the effect that everyone, other than Thomson, the Justice Department, and the judge predicted it would.  Prices for print publications soared.  Thomson started putting fewer pages into each West volume of court cases and charging more for the books.  Price increases for West publications following the takeover exceeded both the rate of inflation and the rate of increases for prices in legal publishing more generally.  One study documented a price increase of over 70 percent for “value added” legal publications (books with supplements) in the four years following the merger.
Prices for online research also climbed astronomically.  Thomson raises rates to private firms each year.  In each of the recent years, Thomson’s charges for online legal research in the West databases have increased roughly 7 percent.  To search the comprehensive West database for state and federal decisions now costs more than $17 per minute.  The federal minimum wage, by constrast, is about $7 an hour.  In addition both Thomson and LexisNexis started charging law schools for online legal research, orginally provided free of charge.  Last year the annual rate increase to law school librarians was roughly 7%, breaking the budget of many university law libraries.

Court-System Transparency

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Here’s a new law review article of note:

Lynn M. LoPucki, “Court-System Transparency,” 94 Iowa Law Review 481-538 (February 2009).

ABSTRACT: Over the past decade, the federal courts became the world’s most transparent court system by switching from paper to electronic filing, resolving daunting privacy problems, and posting their case files on the Internet. Now they are embarking on a second, equally important transformation–the use of relational forms from which court data can be extracted automatically. This Article describes the technology and seeks to project and evaluate the effects of that second transformation.

If it occurs, the second transformation would create millions of windows into the courts at virtually no cost to the government. Policymakers, litigants, and the public would be able to see and understand the patterns of judicial decisionmaking–who wins what and how often. That would provide policy makers the feedback needed to fine tune the system, lawyers the ability to predict the outcomes of their cases, and the public the ability to see what courts actually do. All could also see whether the precautions they take for supposed legal reasons are the right ones.

Opponents argue that court-record transparency (1) would expose parties and witnesses to the risk of identity theft and other harms, (2) would invade privacy by making previously-difficult-to-obtain public-record information about individuals readily available, and (3) would pressure judges in ways that deprive them of judicial independence. This Article argues that none of those objections is well-founded.

Selling the Law: The Business of Public Access to Court Records

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Stephen Schultze and Shubham Mukherjee – Selling the Law: The Business of Public Access to Court Records

“As government documents are increasingly digitized and put online, two orthogonal approaches to distributing these documents have developed. Under one approach, the documents are made easily and freely accessible. In others, the government retains or introduces barriers to access that are inspired by traditional physical access. When these barriers are fee-based, the government can inadvertently create downstream monopolies or architectures of control over public information. This problem is especially severe in the case of federal district court documents, which are available only via an outdated, fee-based, court-run system or from expensive aggregators like Lexis or Westlaw. Indeed, evidence indicates that the courts are using public access fees to subsidize other activities. If we are to be a nation of laws, citizens must have access to the law. The upfront cost of making court documents freely available is far outweighed by the long-term benefits to society. Widespread digitization combined with Internet connectivity has placed these benefits within reach. The courts must now address the task of revamping outmoded policies and funding structures in order to align their practice with this reality.”

http://citp.princeton.edu/events/lectures/stephen-schultze-and-shubham-mukherjee/?/

Video of Schultze and Mukherjee Lecture
http://citp.princeton.edu/wordpress/wp-content/uploads/2009/02/citp_200925.html

Source: Special Libraries Association San Andreas Chapter, Intersect Alert March 29, 2009

Guide to Trial Transcipts in England and Wales

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Searching for docket information and trial transcripts in the UK can be tricky. The Inner Temple Libary has posted a 50 page guide to transcripts of judicial proceedings in England and Wales. Besides providing contact information for requesting transcripts, the document serves as a useful guide to the court system in England. 

Transcripts of Judicial Proceedings in England and Wales: A Guide to Sources

Sarah McLaren, Inner Temple Library

http://www.innertemplelibrary.org.uk/Guides/Transcripts%20Guide.pdf

The Ethical Conundrums of Unpublished Opinions

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Here’s a new, all-you-ever-wanted-to-know plus more article about unpublished/depublished/non precedential/etc. decisions:

“The Ethical Conundrums of Unpublished Opinions”

Shenoa L. Payne

44 Willamette Law Review 723-760 (2008 )

INTRODUCTION

I. BACKGROUND AND HISTORY OF UNPUBLISHED OPINIONS

   A. The Emergence of Unpublished Opinions

   B. The Original Justifications for No-Citation Rules

   C. The Electronic Availability of Unpublished Opinions

   D. The Debate over No-Citation Rules: The Loud Roar from the Eight Circuit

   E. The Treatment of Unpublished Opinions by State Courts and Federal Circuits

II. DEPUBLISHED OPINIONS: WHEN DECISIONS MOVE FROM PRECEDENT TO SECRET

   A. The Depublication Process in the California Courts

   B.  The Changing the Message Behind Depublicaton

   C.  The Criticisms of Depublication

   D.  The Counterarguments

   E.  The Alternatives to Depublication

   F.  The Responsibilities of Lawyers Regarding Depublication and Precedent

III. FEDERAL RULE OF APPELLATE PROCEDURE 32.1: A REAL CHANGE?

   A.  Background

      1. The Value of Unpublished Opinions

      2. The Necessity of Unpublished Opinions for Busy Courts

      3. The Increased Costs of Legal Representation

   B. The Text of Federal Rule of Appellate Procedure 32.1

   C. Is Federal Rule of Appellate Procedure 32.1 a Real Change?

IV. COURTS SHOULD BE REQUIRED TO GIVE UNPUBLISHED OPINIONS THE RESPECT THEY ARE OWED.

   A. Skidmore v. Swift & Co.

   B.  Considerations that Give an Unpublished Opinion “Power to Persude,” if not “Power to Control”

      1. Factually Indistinguishable Cases

      2. Issued by the Same or a Controlling Court

      3. Concerns a Unique Question of Law or Fact

      4. Possesses Other Factors that Give it Power to Persuade, if not Power to Control

   C. The Goal of Uniformity

   D. Guidance for Attorneys

   E. Judicial Accountability and Judicial Efficiency Concerns: A Good Balance

V. SOME PRACTICAL IMPLICATIONS

   A. Why Do Attorneys Want to Use Unpublished Opinions?

   B. Can Attorneys Provide Competent Representation Under No-Citation Rules?

   C. Are Attorneys Able to Provide Diligent Representation in the Face of No-Citation Rules?

   D. Can an Attorney Argue Points Based on Unpublished Opinions Without Bringing a Frivolous Claim?

   E. Does an Attorney Ethically Have to Cite an Unpublished Opinion Contrary to His or Her Position in   Jurisdictions Where No-Citation Rules are Banned?

   F. Is Ignoring Unpublished Opinions in Criminal Cases a Violation of the Constitution?

CONCLUSION

With the availability of unpublished opinions, the original reasons for no-citation rules no longer justify their continued existence. In the face of a long and heated debate, FRAP 32.1 is a step  toward appropriately addressing the problems associated with unpublished opinions. Citation to unpublished opinions is extremely important. However, FRAP 32.1 is extremely limited and allows unpublished opinions only to reach the very bottom tier of precedent, which does not require courts to give unpublished opinions any particular weight.

Courts should employ a uniform rule requiring a Skidmore type deference that gives unpublished opinions respect when due based on four factors: (1) if the facts are indistinguishable; (2) if the unpublished opinion is issued in the same or a controlling court; (3) if the opinion addresses a unique question of law or fact not addressed in published opinions; and (4) all those other factors which give it power to persuade, if lacking power to control. Such a rule would bring uniformity to the treatment of unpublished opinions across federal circuits, give strong guidance to attorneys in assessing their cases, and balance the concerns of judicial efficiency and judicial accountability.

Attorneys face real ethical conundrums even though FRAP 32.1 has prohibited no-citation rules in federal circuits. Attorneys are still bound to (1) local federal rules for unpublished opinions issued prior to January 1, 2007 and (2) the rules of the state courts in which they practice. This means that attorneys must carefully consider their ethical duties of competence, diligence, candor toward the tribunal, the appearance of frivolous claims, and also consider whether they are violating their duties of effective assistance of counsel owed to criminal defendants. Until a uniform rule is in place, such as requiring a Skidmore type deference, attorneys will continue to face challenging ethical conundrums in relation to unpublished opinions.