Filings in Legal Databases as Possible Source for Withdrawn State Court Opinions

We wanted to share as a tip the good fortune that might be had in a legal database’s collection of “Filings” when one is searching for withdrawn state court opinions.  In our scenario, citations in both WestlawNext (“WLN”) and LexisAdvance (“LA”) indicated that a particular state supreme court opinion had been withdrawn.  The WLN & LA results for the withdrawn opinion revealed only that the opinion had been substituted, but no longer contained the text for the withdrawn opinion.  However, with some deep digging into WLN’s “Filings” linked to the substituted opinion, we were able to find a PDF copy of the withdrawn opinion attached as an exhibit to a petition for review.  Often (and as was the case here) the HTML versions of these “Filings” lack referenced exhibits, but thank goodness for PDFs…particularly for these 25-year-old, pre-electronic-filing state court cases!

We hope you’re equally as lucky in gaining ready access to withdrawn state supreme court opinions!

Ineffective Assistance of Library: The Failings and the Future of Prison Law Libraries

By Jonathan Abel, in Volume 101, Issue #5 of The Georgetown Law Journal (June 2013).  Here’s the abstract:

The prison law library has long been a potent symbol of the inmate’s right to access the courts. But it has never been a practical tool for providing that access. This contradiction lies at the core of the law library doctrine. It takes little imagination to see the problem with requiring untrained inmates, many of them illiterate or non-English speakers, to navigate the world of postconviction relief and civil rights litigation with nothing more than the help of a few library books. Yet law libraries are ubiquitous in American prisons. Now, in light of a technological revolution in legal research methods, prison libraries face an existential crisis that requires prison officials, courts, scholars, and inmates to reconsider the very purpose of the prison law library. This Article takes up that challenge by providing a novel historical account of the prison law library’s development.

This Article uses original historical research to show how prison law libraries arose, not as a means of accessing the courts, but rather as a means of controlling inmates’ behavior. By placing the origin of the prison law library in the first decades of the twentieth century–half a century earlier than typical accounts–this Article shows how the law library evolved to take on a new purpose in the 1960s and 1970s, when the Supreme Court and other courts first began to fashion a law library doctrine. The central argument of this Article is simple: The courts’ attempts to graft an access-to-courts rationale onto a law library system that had developed for other purposes led to a law library doctrine riddled with contradictions and doomed to failure. This historical account helps explain a prison law library system that never really made sense in terms of providing access to the courts. As prisons look to update their law libraries in light of sweeping technological changes, it is all the more important to understand the history of the law library system so that authorities can plan for its future.

 

 

Bloomberg Law is moving up

according to the Heard on the Street column in today’s Wall Street Journal, “Data Don’t Add Up for Thomson Reuters.”  From the story:

 a survey of legal-information customers by Claudio Aspesi of Sanford C. Bernstein in January found that 61% of respondents had a subscription to Bloomberg Law, up from 36% the year before. And some respondents said Bloomberg Law was getting closer to offering a breadth of data needed to completely replace a subscription to Westlaw or rival Reed Elsevier’s Lexis-Nexis.

LexisNexis and Westlaw charges – who’s paying?

A story in today’s Wall Street Journal, “Law Firms Face Fresh Backlash Over Fees, caught my eye with this paragraph:

Johnson & Johnson has its own strategy for curbing charges for legal-research services. The health-care-products company maintains its own subscriptions to legal databases such as Westlaw and LexisNexis. It asks law firms to use its accounts when doing work for the company. A J&J spokesman says the practice is one of several used to reduce costs for outside legal work.

Is this a common practice?  Comments welcome.

Finding Solicitor General Briefs (for free)

Updated

Quite a few of us were trying to unravel a few mysterious (to us, at least) citations in the DOJ  letter “RE: Physician Hospitals of America v. Sebelius, No. 11-40631.”

We know now that they are Solicitor General briefs from the DOJ (and, proper attribution of these cites as briefs would have removed all confusion).

While the DOJ researchers cite to Westlaw references that we do not have access to in academia, it would have been far easier to follow their research trail if they had only cited to the free versions of the briefs posted on the DOJ website.

The DOJ Solicitor General site has online briefs going back to 1982.  This site is easy to use.  You can browse by year, subject matter and client.  And, it is all freely available — many as PDFs.

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.

The Future of Legal Search

Here’s a White Paper from Cognizant 20-20 Insights (September 2011) that should be of interest to many readers of this blog:

The Future of Legal Search:

Meeting Lawyer Requirements by Delivering More Contextually-Sensitive and Relevant Results

by Ambika Sagar

Some highlights:

Social media, crowdsourced data and other sources of information continue to generate volume and increase complexity.

Leveraging search history, information search providers can start analyzing how lawyers actually search to build artificial intelligence tools for constructing queries based on cases on which a lawyer is currently working.

Deriving context involves analyzing the pleadings to understand the legal issue.

Proactive search is an ideal opportunity to highlight the value of paid content.  By providing relevant free content and abstracts of paid content, the legal information industry can target upgrading of customers.

Better value propositions such as pay-per-result and assistance in discovery of relevant results can improve conversion rates.

Ideally, a single-sign-in, cloud-based solution that provides access to various tools and ensures maximum integration of research and case data with litigation tools will benefit lawyers the most and also help to attract users and keep them loyal to one platform.

Be sure to check out the article itself and its many useful illustrations.

Thomson Reuters in the news

From a Wall Street Journal report:

Thomson Reuters Profit Jumps 93%

. . . WestlawNext, which has been sold to over 24,000 customers since its launch in early 2010 and is helping to offset downward pressure stemming from continuing weakness in business from large law firms. Legal revenue increased 9% to $843 million for ongoing businesses and before currency adjustments.

And this from a story in yesterday’s Financial Times, “Thomsons grow restless over Reuter’s progress,” (p. 17, by David Gelles and Andrew Edgecliffe-Johnson).

. . . the company’s focus is largely on its Eikon platform, which was designed as a rival to the Bloomberg terminal.  Outside observers acknowledge that Eikon was well conceived. “Eikon is a fantastic idea and if they have time it will go far, ” said [Douglas B. Taylor, managing partner at Burton-Taylor International Consulting].  “It won’t be a Bloomberg killer, but it will reset the bar for Thomson Reuters.”