The Existential Exercise of Finding State Court Materials Online

Recently, we’ve had the opportunity to explore the online availability of state superior court filings, both through commercial retrieval services (such as Lexis’ CourtLink or Westlaw’s CourtExpress), and the superior courts’ own websites.  Sites like Justia are also incredible resources for obtaining select trial court documents, but our project instead examined more standardized provision of dockets and filings.

Having wrapped up this undertaking, we thought it would be useful to share our reflections.  First, a quick caveat about what this project did not involve. We were not comprehensively indexing document availability in every U.S. county, or even in all fifty states.  Rather, we examined selected states and counties, based mainly on population size.  In addition, though we are aware of various existing studies and compilations documenting the availability of state court records, we wanted to look behind some of these reports.  As we often found, a commercial retrieval service’s representation that the “civil filings are available” did not mean all filings on all matters.  Moreover, in a world of ever-changing court websites and eFiling programs, existing studies unfortunately have a somewhat limited shelf life.

So, with those disclaimers in mind, we are excited to share how floored we were by the disparities in the online provision of state court dockets and pleadings!  Here are a couple of observations:

I.          Commercial Services (e.g. CourtLink and CourtExpress)

  • Sometimes, one can get little for one’s money.  The commercial services’ promotional materials are sometimes misleading if you want to retrieve filings.  For instance, their coverage charts could indicate that dockets from Shawnee County, Kansas are available, but one can’t actually retrieve the dockets online; they are “available” only in the sense that one can make a request online (and pay additional money) to have a runner pull them from the court.
  • Another drawback was the infrequency with which commercial services updated their state trial court dockets.  Even if one clicks a button to manually update a docket, this does nothing if one is attempting to do so within the long stretches between docket captures.  (Commercial services capture docket snapshots only every 45 or 60 days, meaning that even if one tries updating in an intervening period, one really isn’t getting any newly-added information.)
  • We also found that, while commercial services often capture federal dockets and filings from PACER indiscriminately, their state court coverage is extraordinarily selective.  They often choose cases based on subject matter cachet, or the perceived needs of their customers.  If you want documents from a run-of-the-mill breach of contract case, you might be out of luck.
  • Don’t try this at home if you want to conduct empirical analysis!  What isn’t available through commercial services significantly constrains research, but what hinders research even further is the inability to determine what isn’t available. How can one properly evaluate, for example, filings in a given jurisdiction when it is unclear what hasn’t been made available for searching?

II.        Publicly-Available Court Websites

  • A trial court’s offering of documents online is not necessarily a question of whether the court sits in a county wealthy enough to provide them.  For example, the superior court in Cincinnati, OH (sitting in Hamilton County) offers document access online, but San Diego County does not.  And one can view civil dockets from Dallas, TX, but not from Denver, CO.  There seems to be something other than wealth or the political inclinations of the jurisdiction at play.  Perhaps it is a matter of prioritization by the state legislature or judiciary, or maybe even the serendipity of having companies nearby that can get databases up and running.  Certainly, jurisdictions with well-established eFiling programs have a leg up on putting documents online; but, even in jurisdictions with eFiling in place, it is not always the case that dockets—let alone documents—can be retrieved on the Web!
  • The quality of available dockets varies dramatically because state court clerks exercise no uniformity in document description.  It is difficult to compile a collection of complaints if various clerks label documents “pleading” or “misc. filing.”
  • Navigational problems can leave you lost at sea.  We spent a lot of time fumbling our way around some of these sites.  One wonders if it is truly “access” to records if one needs a vacation after trying to find them.

At the end of the day, we found too many gaps in coverage for anything to be considered “consistently” available online.  One first step in measuring the parameters of these disparities would seem to be a county-by-county analysis of which trial courts in which states provide online access to dockets and/or filings—either through commercial services or their public websites.  Surveys like the McCormick Tribune Foundation’s comprehensive 2007 assessment, or the commercial services’ coverage charts, are great first steps—but additional testing is required, particularly to keep such studies current.

Brother, can you spare $1,000?

In the age of ever-increasing price tags it can take a lot to cause sticker shock, but I got just that when I assisted a faculty member in requesting photocopies of a lengthy case file from a trial level court.  The final bill was just under $1000.  An amount that doesn’t crack top-ten lists for outrageously priced products, but not a small amount of money either.  Especially when you consider that court records like these are public record.

It begs the question, as part of the public record how publicly accessible are court records? Should “public record” in an increasingly digital world mean a trip to a court house door (possibly states away) or a photocopy bill in the triple (or more) digits?  Neither are easily answered, but both should be considered as we begin to assess the state of public access to primary sources of law and the materials that go in to making them.

A note: I know requests like this are commonplace for many librarians and researchers, but this was my first time getting to the nitty-gritty of requesting a whole case file and doing the math on its cost.  Everyone I spoke to at the court was extremely helpful and they were able to fulfill the request even more quickly than they initially forecasted.

Horse-and-Buggy Dockets in the Internet Age…

Lyle Denniston, courthouse and legal news reporter since 1948, writes about the woeful state of courthouse dockets (and documents) and the difficulties this presents for accurate courthouse reporting in his article “Horse-and-Buggy Dockets in the Internet Age, and the Travails of a Courthouse Reporter,” 9 Journal of Appellate Practice and Process 299 (2007).  The first page of the article opens:

“With rare — too rare — exceptions, however, the news-gatherer on the courthouse beat is still functionally inhibited by the backwardness of most courts in the design, operation, and maintenance of their electronic dockets. . . .

The underlying premise of this criticism is simple to state: No courthouse reporter can do his or her work without prompt–sometimes, virtually immediate — access to original documents. “

As I read this article about the challenges facing reporters on the courthouse beat, I kept substituting the term “legal researcher” into the text.  The concerns about docket/document availability are shared by so many of us in the legal research world.  But, I confess, that I hadn’t really thought about the impact on news reporters. 

Denniston correctly applauds at the fine work of the Florida Supreme Court on the Bush v. Gore documents and the more recent improvements at the U.S. Supreme Court, as well as the great resources found on both the SCOTUS Blog and the SCOTUS Wiki pages.   But more needs to be done.

Perhaps, librarians should be working more closely with legal journalists to improve the access issues?  Especially in a day when media outlets and libraries are experiencing shrinking budgets, we might be wise to find new partners to help us liberate public documents.