Does Internet technology influence the way lawyers and judges think? Should it?

The answer to both questions in the title of this post is “no,” judging from this abstract of a paper by Michael Whiteman, Associate Dean for law Library Services & Information Technology at Northern Kentucky University – Salmon P. Chase College of Law, titled Appellate Jurisdiction in the Internet Age:

A close examination of the citation practices of the United States Supreme Court and the California Supreme Court from the twentieth and twenty-first centuries reveals that appellate jurisprudence in the Internet age closely resembles that of the pre-Internet age. These findings, coupled with the continued criticism of legal researchers in the Internet age, call for a retrenchment in training future lawyers in the essential skills of “thinking like a lawyer.” The traditional techniques that have been taught by legal research and writing professors, and their doctrinal counterparts, must remain an essential part of our legal education system. Appellate jurisprudence in the Internet age is the same as it has always been. Whether one uses the Internet or a treatise to find legal information, the analytical skills necessary to determine relevant precedent remains the most important skill for a lawyer in the Internet age.

Whiteman notes that worries about how availability to ever-larger amounts of legal information might corrupt jurisprudence are nothing new: “The truth is that commentators have been worried about the explosion of legal information and the effects this has had on legal research and jurisprudence for close to two centuries,” (emphasis added, footnote omitted), noting that in 1821, Justice Story lamented that too many young lawyers were relying on treatises instead of actual legal opinions of the courts. Making a similar argument regarding today’s technology-driven growth in the availability of legal information merely continues a “time-honored tradition”:

Several commentators have criticized electronic research and its effects on the research abilities of law students, lawyers, and judges. While there is probably some truth in these criticisms, they reflect a continuation of the time-honored tradition of criticizing the research skills of law students and newly minted attorneys. The one constant that remains is that regardless of the tools used to perform legal research, law students must gain a deep foundation of “thinking like a lawyer.” Thinking like a lawyer encompasses the analytical skills that form the basis for “good” lawyering which will allow law students (and future lawyers) to uncover and utilize the basic building blocks of each jurisdiction’s jurisprudence.

(Footnotes omitted.)

I have not read the entire paper, but the conclusions stated in the abstract and the excerpt above match my intuition. I went to talk to a personal injury lawyer to proove that right. As my prior writing on electronic briefs and laptops may indicate, I think too many people of all stripes, not just lawyers, expect technological tools to revolutionize substantive thought or to improve thinking rather than merely change the way we access, store, or review information. Technology allows us to find relevant information incredibly fast (and makes it tempting to ignore the age-old rule to always read the entire case before relying on it as authority). But once we access the information, we must still rely on our good sense and proven analytical methods.

Thanks to the Legal Writing Institute and the Social Science Research Network for making this paper available. Of course, if you’re still down on technology, you may instead regret that these organizations continue to contribute to what you see as a glut of legal writing! From me, however, they get a “thank you.”

It is important to keep up with the law while your appeal is pending

Goed Zoekveld

Keep an eye on developments in the law while your appeal is pending.
Image courtesy of Bart van de Biezen via Compfight

Most lawyers I know — at both the trial level and the appellate level — keep up with the daily “advance sheets,” which provide a brief summary of Supreme Court and Court of Appeal decisions published the day before. It is an important habit, because you never know when a great decision for your pending case is going to come up.

For a great example, see Miranda v. Anderson Enterprises, Inc., case no. A140328 (1st Dist., Oct. 15, 2015), where the plaintiff/appellant gained the benefit of a Supreme Court decision that came out while his appeal was pending. The Supreme Court case, Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th 348, required reversal of the judgment that would have otherwise deprived Miranda of the right to arbitrate representative claims under the Private Attorneys General Act (Lab. Code, §2698 et seq.). Iskanian was so directly on point that it required only a paragraph of substantive discussion in the Court of Appeal opinion. Of course, the case might have been decided the same way without the Supreme Court’s Iskanian decision, or the Court of Appeal may have asked for supplemental briefing on the effect of Iskanian had neither party addressed it in the briefing, but the new case sure made it easier for appellant to brief the appeal.

The obvious application of the Iskanian holding probably explains why so much of the Court of Appeal opinion in Miranda was spent on the subject of appealability. Faced with a controlling Supreme Court opinion, the respondent probably thought its best hope for keeping the judgment in place would be to get the appeal dismissed for lack of appealability, and spent the bulk of its brief on that issue. However, the respondent failed to convince the Court of Appeal that the judgment was not appealable, leading to reversal based on Iskanian.

Apparently, the law library of the future is going to be one big Kindle

The Journal of the Legal Writing Institute has just published a short essay by Professor Ronald E. Wheeler of Suffolk University Law School, titled “Is This the Law Library or an Episode of the Jetsons?

The big takeaway: the library is going to resemble a super-advanced Kindle and its patrons will look like they are parts of the Borg Collective:

It will include technologies that we know about and technologies that are beyond our imaginations. Things like retinal and holographic displays are predicted to be in use in the next 5 to 10 years. Lawyers, law professors, and other law library patrons will be browsing touchable, holographic shelves to select volumes instead of walking through the stacks of physical libraries. Intelligent,robotic, personal assistants will be providing clerical and other kinds of support to library researchers. Law library patrons won’t carry around smartphones or tablets. Instead they will work on skin-embedded screens with fingernail displays, brain mapping, brain uploading, and DNA storage.

I encourage you to click the article title above to read Professor Wheeler’s view about what this technology means for how we must adapt our teaching, practicing, and researching of the law. Some, he notes, will have to overcome their thinking that electronic resources are less “scholarly” than print resources.

I will admit to some trepidation over technology, including the use of electronic briefs in appeals and the use of laptops in classrooms, but I’m no Luddite. I have concerns about how technology, or at least the misuse of technology, might undermine legal practice and scholarship. Still, I must admit that a general resistance to change and plain old nostalgia influence my thinking. Will today’s younger generation, seemingly so eager to embrace change, have the same nostalgia for their own “good old days” technology? Even the lawyers trained on the technology Professor Wheeler describes might lament the more advanced, “newfangled” technology that displaces the technology they used at the beginnings of their careers.

By the way, I stole that Kindle joke from an exceptionally funny Portlandia skit. Since it’s Friday afternoon, and we probably all deserve a laugh, here it is:

Have a nice weekend, everyone.

Real legal research on your iPhone

If you are an iPhone-using lawyer, you really should subscribe to the iPhoneJD blog, where New Orleans attorney Jeff Richardson keeps you updated not only on specific legal uses for the iPhone, but on all things iPhone.

Yesterday, he reviewed Fastcase, an iPhone app for legal research, and the opening paragraph could hardly have been more glowing:

I will start this review with what probably belongs in my conclusion:  Every single lawyer using an iPhone should download the Fastcase app.  Moreover, the availability of the free Fastcase app is a compelling reason for any attorney not using an iPhone to purchase one today.  This app is that useful.

The rest of his review is very thorough.

The application itself is free, but the two subscription plans offered have an annual cost of  $700 and $1000. While that’s a heck of a lot less expensive than commercial services like Westlaw and Lexis, Fastcase will hardly replace either. It will be most useful for quick lookups on the go.

A lucky few won’t have to conduct any cost-benefit analysis. Seventeen bar associations (so far) offer Fastcase to their members free. That includes several statewide bar associations. Unfortunately, California is not among them, but a couple of Ninth Circuit states are: Arizona, Nevada and Oregon.

UPDATE (2/2/10): On second thought, this application might be good for a lot more than just the occasional quick lookup. On an iPad, it will be a lot more readable. Hmmm, up until know, I was pretty sure I wasn’t going to buy an iPad.

(Cross-posted at The Ninth Circuit Blog of Appeals.)

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Citations of the future

Duke University professor Joan A. Magat has an article up at SSRN suggesting changes in footnote use in academic legal writing, but the future she predicts for legal journals in “Bottom Heavy: Legal Footnotes” may be the future of all legal authority:

No more paper: just electronic journals with links to sources. That’s what’s ahead. All this current, Bluebook-inspired preoccupation with small caps and spacing initials and the like will go the way of the mastodon. One of these days, we’ll have just URLs. They’ll have to be correct, or they won’t work. And they’ll have to last.

If you’re an academic writer, you should check out the article. Here’s the abstract at SSRN, where you can access the complete article after signing up for a free account:

For decades, legal footnotes have been the deserving target of both ample criticism and self-mockery. Apart from their complaints as to footnotes’ mere existence, most critics draw a bead on the ballooning of footnote content. Some journal editors, aspiring to respond to this sound theme, hopefully inform their authors of a preference for “light footnoting.” But where does an author begin to trim, and what editor has the audacity to slash what the author (or her research assistant) has so laboriously compiled below the line? Changing our footnote habits is about benefits and costs. To gain the former, we must ante up. If criticism began the round of bidding, this article modestly raises the stakes, suggesting a rule of reason that might govern the author’s, the editor’s, and the reader’s expectations for footnotes. A gamble, perhaps, but one that might be worth taking.

Google Scholar’s legal database

Google Scholar
Image via Wikipedia

I’m a little late on this . . . OK, I’m a lot late. Last month, Google announced a searchable database of case law and legal journals on Google Scholar:

Starting today, we’re enabling people everywhere to find and read full text legal opinions from U.S. federal and state district, appellate and supreme courts using Google Scholar. You can find these opinions by searching for cases (like Planned Parenthood v. Casey), or by topics (like desegregation) or other queries that you are interested in. For example, go to Google Scholar, click on the “Legal opinions and journals” radio button, and try the query separate but equal. Your search results will include links to cases familiar to many of us in the U.S. such as Plessy v. Ferguson and Brown v. Board of Education, which explore the acceptablity [sic] of “separate but equal” facilities for citizens at two different points in the history of the U.S. But your results will also include opinions from cases that you might be less familiar with, but which have played an important role.

I haven’t had time to test it out thoroughly, but in just a few minutes I was able to find my way around pretty well, and there appear to be quite a few search options. Looking up a case by its citation is much like the paid services: just type the citation in the search box at Google Scholar. There are options on the advanced search page to limit searches by subject matter, to search only federal cases, and to search any mix of individual states. Law journals can be searched by author, journal, date range, and any combination thereof. (Don’t worry if you don’t have the citation format for the law journal handy; identifying it by full name appears to work just fine.) Google provides a page of advanced search tips.

Cases cited in documents are linked for ready access with a click, just like the paid services. Of course, authorities not archived in Google Scholar are not linked, and the cases do not have the headnotes that appear in Westlaw or Lexis cases, and the date range of cases available so far is limited. For details, check out the “About” page for Google Scholar and follow the links in the left margin.

Unlike the free searching on Findlaw, one need not create an account to use the service. That’s nice.

Overall, this is a worthwhile resource, and perhaps especially for law bloggers who want to provide links to case law that won’t expire (like those on the California court websites do) and are is accessible to all readers. I’m going to take a serious look at using it for links on this blog.

UPDATE (12/21/09): I had time to play around with this a little more and wanted to alert readers that while the Google Scholar site does not require any form of membership, getting full access to journal articles in the results may require you to open an account at the site actually hosting the article, such as SSRN (which is free). However, I did run across an article hosted elsewhere that required payment for full access.

UPDATE (12/23/09): Legal Writing Prof Blog notes a discrepancy to watch for between Google Scholar results and the official reporters, and gives the common sense advice “If you’re going to cite to legal authorities found through Google Scholar, make sure you check your results against the official (or commercial) version, as applicable, to ensure accuracy.”

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A Great Resource: Social Science Research Network

SSRN Logo.pngI’ve occasionally downloaded scholarly papers from the Social Science Research Network, usually after seeing them mentioned at the Legal Writing Prof Blog. But until that blog’s recent post about how to stay up-to-date with the latest articles on legal writing, which provides links for subscribing to legal writing articles, I hadn’t really poked around SSRN very much. I took the time to do so this evening, and discovered there are some terrific features. Besides the subscriptions, there is a “briefcase” feature that allows you to accumulate articles of interest for later access. Going though the subscription list, I flagged about 30 papers published just this year. I’ll probably be posting links to many of them in the coming weeks. In the meantime, go to Legal Writing Prof Blog’s post for the links regarding subscriptions.

Welcome, California Lawyer Readers!

Welcome to all first-time visitors led here from the mention of me and the blog in the May 2008 California Lawyer article, Debate Heats Up Over Unpublished Opinions. (For those who haven’t seen the piece, it highlights the recent case of Hild v. California Supreme Court (No. C-07-5107-JCS (N.D. Cal. filed Oct. 4, 2007)), which the article describes as arguing “that the state’s publication rules violate Californians’ due-process and equal-protection rights by creating ‘a de facto policy of refusing review of unpublished decisions in civil cases.'” The piece discusses the case in the context of the ongoing debate over whether the rules should allow citation to unpublished opinions.) My original post on Hild has some useful links, including a good article by How Appealing‘s Howard Bashman.

By the way, the writer of the piece is freelance legal writer Lorelei Laird, whose own cleverly named blog, I Am Not a Lawyer, examines legal issues from the perspective of a non-lawyer.

I’m eager to get into the cover story for this issue, which is about law blogs, but I haven’t had a chance yet. From the look of the cover, though, it appears to make the legal blogosphere look scary! In any event, I’ll put up a post this weekend about my thoughts on the cover article.

Again, if you’re here because you saw the article, welcome! Stay awhile and poke around. Check out the sidebar information. If you’re going to scroll through entries, go back at least two weeks; last week was a light blogging week. Try pulling up all posts in the Legal Writing category, all posts in the Appellate Procedure category, or any other category in the right sidebar that catches your fancy. And come back soon, or subscribe to the RSS feed. (Not sure what an RSS feed is? Click here.)

UPDATE (5/8/08): Per my usual practice with these “welcome” posts, I’m going to leave this post atop the blog for the next few days so the targeted readers don’t miss it as they trickle in. Please look for new posts below this one until then.

Update on Free Online Legal Research

Robert Ambrogi’s Lawsites has this update on free on-line case law resources. The most notable link is to a review of PreCYdent, which may be living up to its hype as “the Google of legal research.” Says the reviewer:

I was stunned by the results of my search [for “in personam jurisdiction”] on PreCYdent. The top six cases were the leading U.S. Supreme Court cases I studied in Prof. Reimann’s jurisdiction class. Each of them is fundamental to an understanding of the application of personal jurisdiction in federal courts. I have never seen a such a highly relevant set of search results on any electronic case search engine. Not in Westlaw. Not in Lexis. Not anywhere.


This stellar result was no accident or the result of preprogammed “best bets.” I tested a few other terms (e.g., “abortion” “sodomy”) and had comparably stellar results. The statute search also worked quite well. And this is the “Beta” release!

Before you discount the review, consider that it is from David Hobbie, the Litigation Knowledge Manager for Goodwin Procter. He’s in the information business.

Still, it’s hard to imagine that lawyers well-versed on a paid subscription service are going to convert completely to any of the public domain services any time soon. There’s always the problem of trying to get lawyers to try something new. And the paid services will look for ways to stay a step ahead of the game.

For lawyers who find Westlaw or Lexis unaffordable, however, it looks like PreCYdent may already be a useful adjunct to combing through the digests looking for case law. And there will surely be more to follow.

A Hunger for Grammar Guidance?

Grammar Girl's Quick and Dirty Tips for Better WritingImage from Wikipedia

My biggest day of blog traffic to date (and this blog is nearly a year old) was last Thursday, and more than half of the hits were to my post complaining about the misuse of “which” for “that.” Curious, I checked my Sitemeter stats and saw that a tremendous number of those hits were referred from the Chicago-Kent College of Law, to which I linked in the post.

I was ready to attribute the traffic spike to some sort of automated web crawling by the school’s servers, but there were also a huge number of clicks out from my post to several of the links in it. All of which makes me wonder if people are really hungry for clear guidance on grammar.

As much as I enjoyed the traffic spike, my writing posts will continue to concentrate on style, with the occasional grammar post. I’ll leave the regular grammar instruction to Grammar Girl.

Legal Research for Non-Lawyers

Last week, a commenter at Lifehacker described LawHelp, which looks extraordinarily useful for non-lawyers: will link you to your state’s legal information web site. Supported by legal aid organizations, pro bono programs and courts, these web sites generally cover information that is applicable to low- and middle-income people in areas such as divorce, orders of protection, landlord-tenant law, and debt collection. The information is generally written in plain language.

The site describes itself as “your gateway to America’s nonprofit legal services providers.” The home page links to self-help sites in all 50 states. Clicking the California link, for instance, takes you here.

When I must turn away prospective clients, I usually refer them to their county’s bar association to inquire about lawyer referrals. From now on, I plan to recommend that they check LawHelp also.

More Free Legal Research

Crediting Lifehacker for the tip, Jeffrey Lewis at Nota Bene links to The Public Library of Law, which describes itself on its home page:

What is the Public Library of Law?

Searching the Web is easy. Why should searching the law be any different? That’s why Fastcase has created the Public Library of Law — to make it easy to find the law online. PLoL is the largest free law library in the world, because we assemble law available for free scattered across many different sites — all in one place. PLoL is the best starting place to find law on the Web.

What is available on PLoL?

Cases from the U.S. Supreme Court and Courts of Appeals
Cases from all 50 states back to 1997
Federal statutory law and codes from all 50 states
Regulations, court rules, constitutions, and more!

PLoL also includes free links to paid content on Fastcase. PLoL is already the Web’s largest free law library, but with additional links from Fastcase, it is one of the most comprehensive law libraries in the world.

LifeHacker ends its post with a reference that tests your internet savvy: “. . . Public Library of Law is, despite its unfortunate URL [], nothing to laugh at.” Get it?

UPDATE (2/19/08): If you don’t get the “unfortunate URL” remark, see my comment to this post for an explanation.

Try Tackling All of This Case Law

“S. COTUS” at Appellate Law & Practice suggests heading over to this link at, where, according to Robert Ambrogi, more than 1.8 million pages of case law have been released in what AL & P calls “somewhat raw form” (raw enough to title his post “XML case law”), apparently as an invitation to developers to catalog them in more usable form.  He adds there are some “fun” videos there as well, and includes a link to a re-enactment of Marbury v. Madison.

How Do You Use Legal Blogs?

NOTE: I am going to keep this post at the top of the blog for a few days, probably until the end of the week. New posts will appear below this one until then, so if you see this post at the top, scroll down to make sure you haven’t missed anything.

How would you like your name up in lights? Or at least mentioned in a presentation? I can’t promise either, but you have a shot at the latter if you respond to my call for assistance at the end of this post.

I am preparing a presentation for a section of the local bar on the use of blogs in legal research. This will be something like the presentation I gave to the Los Angeles County Bar Association Appellate Courts Committee, though there I emphasized my personal experience a great deal, which I intend to downplay on this occasion.

For the upcoming presentation, I’d like to have a better feel about how my readers use blogs in their practices — for research or otherwise.

Most of my non-subscription readers — at least on those days where I am not linked to or from another blog — appear to reach this blog through Google searches. The client inquiries I’ve received through the blog tend to be self-represented litigants, but the stats occasionally show Google hits from very large (“BigLaw”) firms (only the domains of large firms show up by name, typically), which suggests to me that these searches are being conducted by lawyers for research purposes.

I’m curious how these searches are being used. For example, is the search the first legal research step, akin to opening up Witkin for general background, or is it undertaken instead after an attorney is stumped on an issue and hopes to find some recent development that hasn’t made it into print?

I suspect some of the searches are to supplement Westlaw research. For example, if I find a case on Westlaw decided in the last month or so, I might Google it to see if other bloggers or commentators are discussing its implications. That, in turn, could help my own analysis of the case. The Google search terms usually give this away by incorporating the names of the parties.

Another use I know of is to find out if anyone is talking about YOUR case. I have had litigants contact me when I posted about their cases. One did so publicly in the comments. Another contacted me by e-mail. So I know that parties are out there looking.

In any event, I would very much appreciate comments from readers about how legal blogs have influenced or aided their research or practices. Anecdotes would be great. Broader comments about your habits are fine, too. Any background information about the nature of your practice and the blogs you follow would be helpful.

I prefer you make your remarks in a comment to this post rather than by e-mailing me. That way, after the presentation, I can refer the attendees to this blog post if they want to read your comments in detail.

Please note that by submitting information in response to this request, you are granting me permission for me to use all submitted information in the course of my presentation (which shouldn’t be a big deal, since you’re posting it publicly anyway, and might even get you some small amount of publicity). But if you want to leave an anonymous comment, that’s fine, too, and I will present it as such.

UPDATE (02/14/08): Thanks to the following for getting the word out about this post on their own blogs:

The Google of Legal Research?

Crime & Federalism recently posted about a new research service called “PreCYdent,” the function of which he briefly describes:

It appears to “rank” cases much in the way Google ranks web sites. For example, typing in “qualified immunity” in PreCYdent doesn’t just give you a random list of cases. It gives you the leading cases. Saucier v. Katz, for example, is the leading modern day case on qualified immunity. It’s also the first result.

Not all searches run that well, as the writer points out in what amounts to a mini-review, but the service shows promise. You can read more about the service at Right Coast in a post authored by one of the co-founders of the company developing the service.

UPDATE (1/31/08): I’ve corrected the first link in this post to go to the intended post at Crime & Federalism. I had initially linked directly to my comment at that post, instead of the post itself. That was inadvertent. I’m not that narcissistic. Honest. No matter what Judge Kozinski says.

UPDATE #2 (1/31/08): Also posting about the new service is Robert Ambrogi’s Lawsites, which includes some details about the service and several informative links. Thanks to Appellate Law & Practice for the Ambrogi link. And thanks to both of them for this link to the PreCYdent service.

The State of Legal Research Presented in Three Minutes and Thirty-One Seconds

Via Legal Writing Prof Blog comes this short, silent, and mildly amusing film on legal research made by some students at Stanford Law School. Where did these students find the time?

Free Online Constitutional and other Federal Research Resources

2/65/17 Update: A reader alerted me that these links don’t seem to work anymore. Sorry!

Thanks to Fifth Circuit Blog for this link to The Constitution of the United States of America, Analysis and Interpretation: Analysis of Cases Decided by the Supreme Court of the United States.  It is provided by the Government Printing Office at its GPO Access website.

The site has a great index page.  Took me all of five seconds to find online versions of the Code of Federal Regulations, Federal Register, and United States Code that are searchable, browsable, and have a find-by-citation function.

That’s barely scratching the surface.  There’s plenty more, and all of it is free.


Footnote Guidance

Footnotes. Some people love ’em, and some people hate ’em.

And if you don’t know which way the judges deciding your appeal lean on the issue, and you can’t resist using footnotes, you’ll want to at least use them “correctly” — if there is such a thing.

In this post at the (new) legal writer, New Orleans appellate attorney Raymond Ward notes an article by The John Marshall Law School’s Prof. William B.T. Mock, Jr. entitled When a Rose Isn’t ‘Arose’ Isn’t Arroz: A Student Guide to Footnoting for Informational Clarity and Scholarly Discourse, which, according to Ward, divides footnotes into three types and describes the appropriate use of each type.

This is Ward’s second alert to a footnote article in as many months. Last September, he described another professor’s take on footnotes somewhat differently, going so far as to say the author found non-citation based footnotes — that is, footnotes containing anything other than citations to authority — to be “useless.”

Like I said: some people love ’em, and some people hate ’em. I think those two groups probably break down along these lines: Writers love ’em, readers hate ’em.

The articles Ward references are posted at Social Science Research Network. Links to the articles are provided in the respective posts at the (new) legal writer mentioned above.

New Book on Federal Standards of Review

West has published a new book on federal standards of appellate review: H. Edwards and L. Elliot, Edwards and Elliott’s Federal Courts – Standards of Review: Appellate Court Review of District Court Decisions and Agency Actions (West 2007).

Here’s the description from the book’s page at the West website:

This sophisticated but easy to understand exposition of the standards of review offers an invaluable resource for law students, law clerks, and practitioners. Decisions of the U.S. Courts of Appeals invariably are shaped by the applicable standards of review. “Fill[ing] a huge gap in the literature,” Standards of Review masterfully explains the standards controlling appellate review of district court decisions and agency actions. Leading academics have described the text as a “superb treatment, clear and comprehensive, of a crucial aspect of every appellate case,” that “makes accessible even the most complex doctrines of review.”

Of course, the Ninth Circuit has its own nifty research guide for standards of review, which serves as an excellent starting point for appeals to the Ninth. It is downloadable as three separate PDF files here.

Threats to Westlaw and Lexis

Adjunct Law Prof Blog has a post linking to information on upcoming internet repositories for federal case law, and wonders whether new services coming on line will spell the end of Lexis and Westlaw.  I suspect these venerable pay services will stay one step ahead for some time.

I remember seeing a debate in an internet forum once over whether it might be considered malpractice not to conduct computer-aided research.  If there is a big gap in services, or the newer services cannot replicate book research, then perhaps that debate will turn to whether it is malpractice to use a less powerful computer-aided research tool.

Online Supreme Court Resources

Th Ross-Blakley Law Library Blog has posted links to some Online Resources to Follow the Supreme Court. It’s not a bad set of links. But it neglects to mention SCOTUSblog and its new, super-cool feature, SCOTUSwiki.

What’s a wiki, you ask?

I posted this several months ago about the growth of legal wikis and the potential for court citations to wikis. A wiki with the stature of SCOTUSblog behind it makes that even more likely.

Plagiarism Sanctions Issue, Blog Readers React, and How this Relates to Value Billing

This post at The Volokh Conspiracy post and this one at Tax Prof Blog both provide extended excerpts from an Iowa bankruptcy case in which the court sanctioned an attorney — quite stiffly — for submitting a brief that was almost entirely (15 of 17 pages) lifted word for word from an article written by two other attorneys, without attribution.  The attorney charged the client $5700 for the brief.

Both posts have lengthy comment threads (Volokh’s is longer), with a great many defenders of the attorney — not for the billing, but for submitting the brief.  Many are also upset (rightfully so, to my mind) with the court’s apparent position that copying a string citation, including parenthetical comments, is plagiarism.

A couple of interesting comments, apparently on this last point, from the Volokh post (with links — gotta watch that attribution!):

From wm13: “What might happen to all those judges who tell counsel to write an order and they will sign it? What about an appellate court which finds a brief convincing and uses some of its phraseology in its opinion?”

From Happyshooter:  “All appellate court opinions around here would be plagiarism under that standard.”

DJR says that if the standards cited by the judge apply, “there are hundreds of judges who will need to start citing the bench memos and draft briefs written by their clerks so as not to intentionally pass off their “creative expressions” and ‘original ideas’ as their own.”

Bruce Hayden (or someone posting as him), who has an eponymous blog raises a question in the Volokh comments of relevance to alternative billing:

Read More »

Arguing against Binding Authority

What do you do when your only hope is to take a position that has been soundly rejected by the same appellate court in a prior case?  Well, you don’t do it by arguing for that position as if that bad case never happened and without citing it.  The Ninth Circuit is clearly a little peeved with the Department of Justice for doing just that in Singh v. Gonzales, case no. 04-70300 (9th Cir. Sept. 7, 2007):

It is the responsibility of the Department of Justice and its lawyers to be aware when its positions have been rejected by the court. While it is acceptable to make a rejected argument for purposes of preserving it for en banc or Supreme Court consideration while acknowledging that it has been rejected by the court, it is not acceptable to repeat an argument already rejected without acknowledging the case that rejected it, particularly where it is the Department of Justice itself that was involved in earlier case. Another such repetition of this same argument in this court will be considered sanctionable behavior.

Comedian Steve Martin used to joke that a lot of problems can be solved with two simple words: “I forgot.”  As in “I forgot to pay my taxes” or “I forgot killing someone was against the law.”

“I forgot about that binding case that soundly rejected the position I am advocating” works about as well.

A Plug for “Old School” Research

Thanks to the Second Opinions blog, I found Law Dawg Blawg today, which has this post summarizing an article at Legal Times by a Big Law partner about his concern that young associates rely too much on online legal research tools, and what his firm did to encourage young associates to get into the library and utilize print resources.  This should be of particular interest to “old school” attorneys.

I suspected that some lawyers were moving away from print because this blog gets hits from law firms running searches in Google.  I don’t expect to replace Westlaw anytime soon, but I find it interesting that the searchers at these firms (some of them Big Law firms) are actually clicking through to the blog while doing research.

 I love online research, especially using the Key Number system on Westlaw.  But for initial research in secondary materials, or to actually read materials, it is far more satisfying for me to be in the library.

I suggest you read the summary post at Law Dawg Blawg first before going on to the Legal Times article.

The Dictionary’s Role in Statutory Interpretation

Remember the response you got every time you asked your teacher how to spell a word? “Look it up on the dictionary.”  To which we all mumbled under our breath, “How am I supposed to look it up if I don’t know how to spell it?”

Well, there may be another question that gets the same answer to “look it up in the dictionary.”  That question is, “How do I interpret this statute?”

Honest.  Check out University of Louisville’s law school Library Director Kurt X. Metzmeier’s paper at SSRN (Social Science Research Network) entitled “You Can Look it Up: The Use of Dictionaries in Interpreting Statutes.”  No mumbling, now.

Here’s the abstract:

Justice Antonin Scalia’s well-known preference for using dictionaries rather than legislative history to interpret statutes is the jumping off point for an examination of the tools of textual analysis. The brief article offers common-sense rules for scientifically selecting dictionaries to interpret statutory language. First, the author describes the most respected unabridged dictionaries and their history. Next, there is a discussion of the principle that the dictionary selected should be relatively contemporaneous with the text interpreted. Finally, the use of specialized dictionaries to interpret the unique terminology of a trade or profession is detailed.

Your reward for downloading the paper (besides the content itself) is a great color photo of a Justice Scalia “bobblehead” figure.

Thanks to Legal Writing Prof Blog for the link.

Free U.S. Case Law Database Launched at Columbia

Columbia Law School issued this press release last week regarding its launch (in conjunction with University of Colorado Law School) of a free database of U.S. Supreme Court and Courts of Appeals decisions dating back to the early 1990s.  The school plans to expand the database in the future and says that its service “has the potential to transform the national landscape of case law resources.”Thanks to Legal Writing Prof Blog for the link.UPDATE (8/30/07):  More on the project at Info/Law.  Thanks to Law School Innovation for the link.