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.

Legal Research Methods in a Modern World: A Coursebook

Together with my Stanford Law School colleague George D. Wilson and our friend and Danish legal scholar Henrik Spang-Hanssen, we have just published the third edition of our legal research book, a revision of Legal Research Methods in the U.S. and Europe, 2nd Edition.  But with the inclusion of short but good (in my opinion) chapters on legal research in China and Russia and some other materials, we have changed the title to Legal Research Methods in a Modern World: A Coursebook.

The book, now weighing in at 453 pages (and bargain priced at $ 55.00), is rich with illustrations and peppered with legal research tips.  My contribution is mainly Chapter 5, about legal research methods in the United States, and it is based upon and follows the advanced legal research class that I co-teach here at Stanford.  New to this edition, in addition to other updates, is the inclusion of research exercises that we have found most useful from the class.  I did not include the answers — because I hope to continue to use these exercises — but I would be very happy to share the answers and my thoughts on approaches with other instructors of legal research.

The legal world is certainly getting smaller, and it is our shared belief that this would be handy book for any attorney to have as he or she deals with lawyers from other countries and their legal cultures.

The book should be available from Amazon.com; but if not, or if you want to order copies in mass quantities, the U.S. distributor is International Specialized Book Services.  For other countries, the distributor is Marston Book Services.

We also have a corresponding website here.

“Abandoning Law Reports for Official Digital Case Law”

“Abandoning Law Reports for Official Digital Case Law” 

Cornell Legal Studies Research Paper No. 11-01
PETER W. MARTIN, Cornell Law School
In 2009, Arkansas ended publication of the Arkansas Reports. Since 1837 this series of volumes, joined in the late twentieth century by the Arkansas Appellate Reports covering the state’s intermediate court of appeals, had served as the official record of Arkansas’s case law. For all decisions handed down after February 12, 2009, not books but a database of electronic documents “created, authenticated, secured, and maintained by the Reporter of Decisions” constitute the “official report” of all Arkansas appellate decisions.
 
The article examines what distinguishes this Arkansas reform from the widespread cessation of public law report publication that occurred during the twentieth century and this new official database from the opinion archives now hosted at the judicial websites of most U.S. appellate courts. It proceeds to explore the distinctive alignment of factors that both led and enabled the Arkansas judiciary to take a step that courts in other jurisdictions, state and federal, have so far resisted. Speculation about which other states have the capability and incentive to follow Arkansas’s lead follows. That, in turn, requires a comparison of the full set of measures the Arkansas Supreme Court and its reporter of decisions have implemented with similar, less comprehensive, initiatives that have taken place elsewhere. Finally, the article considers important issues that have confronted those responsible for building Arkansas’s new system of case law dissemination and the degree to which principal components of this one state’s reform can provide a useful template for other jurisdictions.

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.

Why Ask Why West

I just received a brochure from Lexis for its set of California Reports, and I intend to share it with our advanced legal research class.

From the blurb:

As the official publisher of the California Reports, LexisNexis is part of the court’s publishing process.  LexisNexis editors work closely with the California Reporter of Decisions’ staff to meet all requirements for authenticity, integrity and accuracy.  All opinions are checked, corrected and approved prior to publication in the official advance sheet — and again before the bound volumes are published.  Plus all headnotes and case summaries are approved by the author of the opinion. . . .

A lot of work, to be sure.  And there’s no doubt that West’s efforts are similar.

What’s not similar are the prices for the bound volumes:

LexisNexis:

California Official Reports: Supreme Court Bound Volumes . . . $ 22.30

California Official Reports: Appellate Court Bound Volumes . . . $ 22.30

West (from our latest monthly invoice)

West’s California Reporter . . . $ 195.50

Judge says: Keep this opinion out of Westlaw and LEXIS

 Judges make decisions and write opinions.  Some opinions get published and some do not.  Unpublished opinions get unofficially published in West’s Federal Appendix and very often show up online.   And on infrequent occasions some opinions find their way into LexisNexis but not Westlaw; others are found in Westlaw but not LexisNexis.

Here’s a case that caught my eye while doing some docket searching (I drink POM Wonderful, so that’s why it stood out).

On December 21, 2009 Judge A. Howard Matz, of the United States District Court for the Central District of California, issued an 7-page order in the case of POM Wonderful LLC v. Welch Foods, Inc..   This opinion includes, among other things, a discussion of standing under the California Unfair Competition Act and the California False Advertising Act.  At the end of the document, the judge writes:  “This Order is not intended for publication or for inclusion in the databases of Westlaw or LEXIS.” (emphasis mine)

A quick search of Bloomberg Law dockets produces at least a dozen other orders from this same judge with this same language.

So what about Bloomberg Law.com?  Or Google Scholar?  Or Fastcase?  Justia?  May any/all of them include the order?

Or is it just the strength of the Wexis duopoly and the judge really means he does not want the order published online anywhere.

LexisNexis and Westlaw have been the big players for decades.  But Google really could be a game-changer.  As a review article in the March 8, 2010 issue of The Recorder (“Worthy Adversary”) by Oliver Benn of Google Scholar points out:

If Google wants to devote its resources to addressing its current limitations, the future of legal research could become very different.  Many courts accept briefs electronically.  Why not hyperlink cited cases in the brief to the cases’ free Google pages?

And getting back to POM Wonderful, apparently it is available in LexisNexis and Westlaw, despite the judge’s request that it not be (please see comment from Bev Butula).

Dissents from the Bench – More from the New York Times

In today’s New York Times, Adam Liptak writes about dissents from the bench.  “In a Polarized Court, Getting the Last Word,” Liptak  describes a new study that is soon to appear in the Justice System Journal.

The Brooding Spirit of the Law: Supreme Court Justices Reading Dissents from the Bench” by William Blake and Hans Hacker states that dissenting from the bench  “may indicate that bargaining and accommodation have broken down irreparably.”

Liptak writes:

“There are no comprehensive records of oral dissents, and researchers reviewed audio recordings — many available on the indispensable Oyez Web site — newspaper accounts and other resources to track them down. Jill Duffy, a research librarian at the Supreme Court, and Elizabeth Lambert, a staff lawyer with a Federal District Court in New York, seem to have assembled a complete list going back to 1969 in the winter issue of the Law Library Journal.”

[And, blogged about here some time ago.]

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

Dissents from the Bench: A Compilation of Oral Dissents Issued by U.S. Supreme Court Justices

New on SSRN:

Dissents from the Bench: A Compilation of Oral Dissents Issued by U.S. Supreme Court Justices by Jill Duffy (Supreme Court of the United States) and Elizabeth Lambert (United States District Court for the Eastern District of New York)

Abstract:
Oral dissents identify some of the Supreme Court justices’ most deeply held minority opinions. While print dissents are published routinely, oral dissents are not systematically tracked. This article presents the results of our AALL grant-funded project to locate oral dissents issued from October 1969 through today, discusses the methodology used in compiling our list, and describes various aspects of oral dissents that may make some more difficult to find. This project was funded by the American Association of Law Libraries (AALL) Research Fund: An Endowment Established by Lexis-Nexis.

The appendix is quite handy for your reference desk as it contains a list of the oral dissents from the October Term of 1969 to the present. Just in case you were wondering: the authors found 117 oral dissents.

Deep in the Heart of Texas, err, Google

With tweets and blogs, legal research is just so much more interesting. 

After posting yesterday on Practitioners Beware…Research on Westlaw / Lexis is a Necessity in Texas?, a Tweet from a fellow librarian led to an interesting post on the Supreme Court of Texas Blog.

The post,  Researching Unpublished COA Opinions in Texas, offers a free and pretty nifty trick for combating the problem of searching for unpublished COA opinions in Texas.  It involves some handy-dandy Google searching.   (Note: Google indexes all the COAs in Texas except for Dallas.) 

As the blog explains:

Texas has fourteen courts of appeals.  Luckily, the opinions in thirteen of those (all but Dallas) can be quickly searched in Google by including the following operator within your search query:

site:courts.state.tx.us/opinions

If you want to focus your results on a particular court, such as the appellate district your case is in, just add that to the operator. For example, “site:3rdcoa.courts.state.tx.us/opinions” restricts the search to opinions coming out of the Austin Court.

Very nifty.  So, sure it isn’t perfect, but it is a free option that the bloggers at SCOTXblog claim works pretty darn well.  They also offer some tips for searching the Dallas court and the Texas Supreme Court.

And, if you can’t deal with the search strategy above, you can click on the “Search Opinions and Orders” box at the far left of their blog page.  Cool!